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2012
Of Backyard Chickens and Front Yard Gardens:
The Conflict Between Local Governments and
Locavores
Sarah B. Schindler
University of Maine School of Law, [email protected]
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Sarah B. Schindler, Of Backyard Chickens and Front Yard Gardens: The Conflict Between Local Governments and Locavores, 87 Tul. L. Rev.
231 (2012).
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OF BACKYARD CHICKENS AND FRONT YARD GARDENS: THE CONFLICT BETWEEN
LOCAL GOVERNMENTS AND LOCAVORES
Sarah B. Schindler*
ABSTRACT
Locavores aim to source their food locally. Many locavores are also concerned more
broadly with living sustainably and decreasing reliance on industrial agriculture. As
more people have joined the locavore movement, including many who reside in urban
and suburban areas, conflict has emerged between the locavores’ desires to use their
private property to produce food—for personal use and for sale—and municipal zoning
ordinances that seek to separate agriculture from residential uses.
In this Article, I consider the evolution of this conflict and its implications for our systems
of land use, local government, and environmental law. Specifically, I investigate the
police power rationales for the existence of ordinances that disallow urban homesteading
in urban and suburban communities. I then demonstrate that public health, civic virtue,
and free market principles can be used to justify the passage of ordinances that would
expressly permit these behaviors. Central to this analysis is a discussion of the problems
caused by industrial agriculture and the lack of access to locally produced foods—food
insecurity, food deserts, obesity tied to processed foods, monoculture-induced
environmental catastrophes, harm to animals, and greenhouse gas emissions—all of
which could be alleviated, at least in part, through urban agriculture. In recognition of
these changing conceptions of harm, some local governments have begun to pass
ordinances expressly allowing gardens, chickens, and the sale of produce in residential
areas. I conclude by considering what this movement toward loosening restrictions on
the use of private property says more broadly about the decline of Euclidean zoning
controls and the future of land use law.
TABLE OF CONTENTS
I.
Introduction .................................................................................................................. 3
II.
Urban Agriculture Bans .............................................................................................. 9
a.
Existing Bans on Vegetable Gardens and Produce .......................................... 9
i.
Prohibiting Growth in Certain Zones..................................................... 10
*
Associate Professor of Law, University of Maine School of Law. I am grateful to Jennifer Wriggins,
Keith Hirokawa, Jonathan Rosenbloom, Stephen Miller, Michael Lewyn, Dave Owen, Dmitry Bam, Karen
Bradshaw, Orlando Delogu, Wells Lyons, and Marya Baron for their helpful comments. Thanks also to the
participants of the 2011 Colloquium on Environmental Scholarship at Vermont Law School, the 2012
Association of Law, Property and Society at Georgetown University, and the 2012 Northeast Regional
Scholarship and Teaching Development Workshop at Albany Law School. Special appreciation to the
Humane Society of the United States for use of the Shin Pond property, and to Erin Dooling for outstanding
research assistance.
1
Electronic copy available at: http://ssrn.com/abstract=2030526
ii. Only Allowing Expressly Permitted Uses ............................................. 10
iii. Prohibiting Front Yard Gardens............................................................. 11
iv. Prohibiting or Limiting the Sale of Produce .......................................... 13
b.
III.
Existing Bans on Backyard Chickens ............................................................ 15
Justifications for Bans on Urban Agriculture.......................................................... 17
a.
Traditional Ideals Underpinning Euclidean Zoning ...................................... 18
b.
Promoting Public Health and Avoiding Nuisances ....................................... 25
c.
Aesthetic, Economic, and Exclusionary Justifications .................................. 30
d.
Inertia and Neighbor Complaints................................................................... 32
IV. Justifications for Removal of Proscriptive Urban Agriculture Bans and Replacement with Prescriptive or Permissive Urban Agriculture Policies ... 33
a.
Urban Agriculture as a Local Government’s Tool to Further Public Health, Safety and Welfare While Combating Industrial Agriculture’s Harms ......... 35
i.
Public Health.......................................................................................... 36
1. Food Insecurity ................................................................................ 36
2. Food Deserts .................................................................................... 39
3. Obesity, Processed Foods, and the Role of the State....................... 42
4. Food Safety ...................................................................................... 47
ii. Environmental Harm.............................................................................. 48
1. Food Miles Traveled and Climate Change ...................................... 48
2. Monocultures ................................................................................... 50
3. Water Runoff and Pesticides............................................................ 51
4. Animal Welfare................................................................................ 53
b.
Civic Virtue: Strengthening Community and Private Property Interests....... 54
c.
Support for the Free Market: Efficiency, Property Values, and Nuisance Protection ....................................................................................................... 57
V. Moving Forward: Potential Solutions and Broader Implications ............................. 62
a.
Zoning, Comprehensive Plans, and Covenants.............................................. 62
b.
Sustainability Plans and Goals....................................................................... 66
c.
Broader Implications: The Fall of Euclidean Zoning? .................................. 68
VI. Conclusion ............................................................................................................... 72
2
Electronic copy available at: http://ssrn.com/abstract=2030526
I.
Introduction
In the quiet Chicago suburb of Oak Park, Illinois, Julie Bass was brazenly
breaking the law. An inspection of the crime scene would reveal no assault rifles or illicit
drugs, but rather a shovel, raised planting beds, and some seeds. Ms. Bass faced 93 days
of jail time for planting a vegetable garden in her front yard, and for refusing to comply
with the City’s demand to remove it.1
Ms. Bass’s situation is not unique. Throughout the country, antiquated land use
ordinances restrict homeowners and renters from undertaking practices such as raising
chickens for eggs, planting gardens in front of their homes, or selling produce they have
grown.2 These forbidden practices fall into a broader category of activities and
movements with many names and variations: urban homesteading,3 locavorism,4
relocalization,5 urban agriculture,6 recession gardening,7 food sovereignty,8 and regional
1
Bass received a code enforcement ticket, followed by a misdemeanor charge. Internet Buzz: Concept of
Jail Time for Growing a Vegetable Garden, MY FOX DETROIT, July 14, 2011,
http://www.myfoxdetroit.com/dpp/news/local/why-cant-i-grow-a-vegetable-garden-in-my-frontyard_20110712_dk. The City did not believe her garden was “suitable live plant material,” which was the
only permissible use of a front yard other than for grass or shrubs. OAK PARK, MICH. CODE § 1716(A)(5)
(2012) (“All unpaved portions of the site shall be planted with grass ground cover, shrubbery, or other
suitable live plant material.”).
2
See generally Patricia E. Salkin, From Euclid to Growing Smart: The Transformation of the American
Local Land Use Ethic Into Local Land Use and Environmental Controls, 20 PACE ENVTL. L. REV. 109, 110
(2002) [hereinafter Salkin, From Euclid to Growing Smart] (“Almost a century later, local governments are
finding themselves limited by zoning schemes authorized by state statutes that were enacted prior to
television, computers, sports utility vehicles and massive investments in the built-up infrastructure.”);
Angie Basiouny, Backyard bounty ruffles some feathers: Suburban chickens create a quandary in [New
Castle County], THE NEWS JOURNAL, Sept. 23, 2009 (“dozens of local governments nationwide [are]
dealing with the intersection of lifestyle and land use as a recession-fueled interest in urban farming
collides with strict laws originally drafted to keep neighborhoods clean and tidy.”).
3
Mary Wood, et al., Promoting the Urban Homestead: Reform of Local Land Use Laws to Allow
Microlivestock on Residential Lots, 37 ECOLOGY L. CURRENTS 68, 69 (2010) (urban homesteading is the
“effect of transforming the urban or suburban yard into a food-producing lot.”).
4
Top Twelve Reasons to Eat Locally, LOCAVORES, http://www.locavores.com/how/why.php (last visited
Jan. 22, 2012) (Locavores choose to source their food locally.).
5
Jeffery M. Brown, Black Internationalism: Embracing an Economic Paradigm, 23 MICH. J. INT'L L. 807,
859 (2002) (“Relocalization . . . stresses the primacy of local initiatives to combat the adverse effects of
globalization.”).
6
Katherine H. Brown & Anne Carter, Urban Agriculture and Community Food Security in the United
States: Farming from the City Center to the Urban Fringe, CMTY. FOOD SEC. COAL. N. AM. URBAN
3
foodsheds.9 The reasons for these restrictive ordinances vary. Some have been in place
since Euclidean10 zoning and land use ordinances were first created, with a purpose of
separating and isolating residential uses from agricultural uses. In other jurisdictions,
these practices fall as the incidental victims of neighborhood uniformity and aesthetic
demands for neat and tidy front lawns.11 Bans related to farm animals within city limits
often stem from nuisance-related concerns about noise and odor.12
However, as greater numbers of individuals become interested in sustainable
lifestyles, the allure of urban homesteading is growing. Many people want to feed
themselves and their families without burning oil by driving to the grocery store, or
spending money on food that required large amounts of fossil fuels during production and
AGRIC. COMM., 1 (Oct. 2003), www.foodsecurity.org/PrimerCFSCUAC.pdf (“Urban agriculture . . . is the
growing, processing, and distribution of food and other products through intensive plant cultivation and
animal husbandry in and around cities.”).
7
‘Recession gardens’ sprouting up, WASH. TIMES, Mar. 17, 2009,
http://www.washingtontimes.com/news/2009/mar/17/recession-gardens-sprouting-up (Recession gardening
means “cultivating vegetables in [] backyards to squeeze every penny out of [] food budgets.”).
8
Deirdre Fulton, Free our food: Small farmers demand independence from agrobusiness industry rules,
PORTLAND PHOENIX, May 4, 2011, http://portland.thephoenix.com/news/120146-free-our-food/ (the “‘food
sovereignty’ movement [is] aimed at restoring the direct relationship between food producers and
consumers, while reducing government interference in local food systems.”).
9
Patricia Salkin & Amy Lavine, Regional Foodsheds: Are Our Local Zoning and Land Use Regulations
Healthy?, 22 FORDHAM ENVTL. L. REV. 599, 600 (2011) (regional foodsheds are “geographic areas in
reasonably close proximity to where an urban community receives agricultural commodities.”).
10
Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926) (upholding constitutionality of
comprehensive zoning); see infra note 97 (describing Euclidean zoning).
11
These requirements might be imposed by zoning ordinances, but are also often found in private
restrictive covenants, termed Covenants, Conditions, and Restrictions (CC&Rs), which control numerous
neighborhoods that are governed by private Homeowner’s Associations. See generally Robert C. Ellickson,
Cities and Homeowners Associations, 130 U. PA. L. REV. 1519 (1982); Stephen R. Miller, Legal
Neighborhoods, 37 HARV. ENVTL. L. REV. (forthcoming 2012). CC&Rs’ role in the urban agriculture
debate is addressed infra, Part V(a). See also LEWIS MUMFORD, THE CITY IN HISTORY: ITS ORIGINS, ITS
TRANSFORMATIONS, AND ITS PROSPECTS 485 (1961) (discussing “hygienic superiority” of the lawn).
12
See, e.g., MARY WOOD ET AL., REFORM OF LOCAL LAND USE LAWS TO ALLOW MICROLIVESTOCK ON
URBAN HOMESTEADS 13 (Mar. 1, 2010), available at
https://www.law.uoregon.edu/assets/facultydocs/mwood/microlivestock.pdf (“Cities have generally
prohibited microlivestock because they are considered ‘farm animals.’ An individual who wanted such an
animal would have to buy a farm. That notion, however, runs counter to the growing interest of citizens in
making full use of their privately owned property to provide for healthy food and family self-sufficiency.”).
4
transportation.13 This is a key tenet of the locavore14 movement: eat food—preferably
organic—that is grown close to where one lives and is in season. Locavores’ goals
include reducing their carbon footprint by reducing their reliance on industrial agriculture
and oil-based food production, supporting their local economy, avoiding genetically
modified foods (GMOs), reducing ingestion of residual fertilizers and pesticides, saving
money, supporting fair treatment of farm laborers and humane treatment of farm animals,
and teaching others about food origins.15 These goals are lofty, but there is historical
evidence that individual actions can have a global impact. During World War II, people
grew “victory gardens” that produced 40 percent of the produce consumed in the U.S.16
Many urban agriculture bans stem from early zoning ordinances that took hold in
urban and suburban areas. Localities used their police powers, acting in the interest of the
public health, safety, welfare and morals, to zone agricultural uses out of residential
areas. Although bans on urban agricultural practices are still common, many
municipalities are looking for ways to encourage better health and increase “green”
13
See infra Part IV(a)(ii)(1); but cf. infra note 228.
Locavore was chosen as the Oxford University Press word of the year in 2007. Oxford Word of the Year:
Locavore, OXFORD UNIVERSITY PRESS BLOG, http://blog.oup.com/2007/11/locavore/ (last visited Jan. 16,
2012).
15
See, e.g., Marion Burros, Preserving Fossil Fuels and Nearby Farmland by Eating Locally, N.Y. TIMES,
Apr. 25, 2007, http://www.nytimes.com/2007/04/25/dining/25loca.html (describing selecting foods that are
in season and grown close to residences, and reducing reliance on industrial agriculture); Guidelines for
Eating Well, LOCAVORES, http://www.locavores.com/how/ (last visited Jan. 22, 2012) (advising to eat local
and organic produce when possible); Top Twelve Reason to Eat Locally, supra note 4 (listing reasons to eat
locally, including: reducing one’s carbon footprint, supporting local economies, avoiding GMOs, and
reducing ingestion of chemicals); John Cloud, Eating Better than Organic, TIME, Mar. 2, 2007,
http://www.time.com/time/magazine/article/0,9171,1595245-1,00.html (discussing virtues of eating close
to home, reducing the number of food miles consumed, reducing exposure to pesticides, and learning about
where food comes from); U.S. DEP’T OF AGRIC., ECON. RES. REP. NO. 97, LOCAL FOOD SYSTEMS:
CONCEPTS, IMPACTS AND ISSUES, 3 (2010), www.ers.usda.gov/Publications/ERR97/ERR97.pdf
(articulating reasons for locavorism, including reducing reliance on industrial agriculture, supporting local
economies, avoiding pesticides, supporting fair farm labor practices and animal welfare, and learning about
roots of food); ‘Recession gardens’ sprouting up, supra note 7 (observing that gardens save money).
16
Greening Food Deserts, H.R. 4971, 111th Congress § 2(a)(20) (2010); AMY BENTLEY, EATING FOR
VICTORY 117 (1998); DARRIN NORDAHL, PUBLIC PRODUCE: THE NEW URBAN AGRICULTURE 136 (2009).
14
5
economic development.17 Now, as conceptions of harm are changing, localities can use
those same police powers that originally justified bans on urban agriculture to instead
justify more permissive uses of residential property for agricultural purposes to further
broader public health and welfare goals. To those ends, some localities have recently put
in place ordinances that proactively address and govern urban agriculture practices.18
Importantly, the elimination or loosening of bans on urban agriculture exemplifies
a broader trend in land use law: in pursuit of sustainable development, some local
governments are beginning to move away from restrictive zoning ordinances. This trend
is visible in the implementation of smart growth and new urbanist policies, form-based
codes,19 and the rise of mixed-use zoning ordinances. Furthermore, the movement toward
permissive municipal views of urban agriculture illustrates a perennial issue in land use
policy: how to allocate control over land use between municipal governments and private
property owners.20 Urban agriculture presents an example of some governments and
citizens agreeing that, at least with respect to certain agricultural uses, and as long as
certain prescriptive controls remain in place, private landowners should be able to use
their property free from the constraints of severe public regulation. As Robert Ellickson
and Vicki Been point out:
17
Nina Mukherji & Alfonso Morales, Zoning for Urban Agriculture, ZONING PRACTICE (Mar. 2010) (“As
sustainability has moved up the municipal agenda, cities have begun to take an interest in urban agriculture
as a way to promote health, to support economic and community development, and to improve the urban
environment.”).
18
See generally Mukherji & Morales, supra note 17. “[C]ities from Austin, Texas, to Little Rock, Ark., to
Miami, New York City and Seattle have all recently changed land-use laws to permit urban agriculture. . . .
The Charlottesville, Va., Goat Justice League persuaded city officials there to overturn a 30-plus year-old
law banning goatkeeping. The law evidently was passed after a rogue goat wreaked havoc in the city.” Arin
Greenwood, Got Your Goat, ABA JOURNAL 12 (June 2011).
19
Form-based codes are zoning codes that are more concerned with a building’s form and structure than its
use. Patricia E. Salkin, Symposium: Squaring the Circle on Sprawl: What More Can We Do? Progress
Toward Sustainable Land Use in the States, 16 WIDENER L.J. 787, 833 (2007) [hereinafter Salkin, Squaring
the Circle on Sprawl].
20
See ROBERT C. ELLICKSON & VICKI L. BEEN, LAND USE CONTROLS: CASES & MATERIALS 31 (3d ed.
2005).
6
Few observers approach this issue free of ideological baggage. Stalwarts
of public regulation regard government as an essential check on the
environmental damage that self-interested landowners might cause if left
alone . . . Stalwarts of markets, by contrast, regard public regulation as a
coercive system that commonly makes urban outcomes worse, not better.21
In many land use cases, supporters of fewer regulations are supporters of market forces.
However, in the case of urban agriculture, it is often progressive and otherwise typically
pro-regulatory forces—the locavore liberals—who have championed many of the
ordinances that loosen restrictions. Thus, the parties to the urban agriculture debate do
not easily map onto the traditional political pro-regulation/anti-regulation divide.
This Article focuses on individual homeowners and renters. It examines their
desire to use private land in a way that supports sustainable urban agriculture and
locavore policies, and the existence of land use ordinances that govern those behaviors.
Although there has been a limited scholarly discussion suggesting government
involvement in the promotion of sustainable urban agriculture,22 much of that discussion
focuses on the use of surplus and underused public land and government aid in the
creation of community gardens;23 in other words, government as a source of land or
money, rather than as a regulator. Legal scholars and the press are just beginning to pay
attention to the more current issues raised in this Article.24 Further, this Article sheds
21
Id.
See, e.g., Kathryn A. Peters, Creating a Sustainable Urban Agriculture Revolution, 25 J. ENVTL. L. &
LITIG. 203, 205 (2010) (“[I]t is imperative that the government, at federal, state, and local levels, establish
policies that promote sustainable urban agriculture to ensure access to an adequate food supply produced
with minimal impact on the environment.”).
23
Id.; NORDAHL, supra note 16; Neil D. Hamilton, Greening Our Garden: Public Policies to Support the
New Agriculture, 2 DRAKE J. AGRIC. L. 357, 359 (1997).
24
For example, students at the University of Oregon School of Law recently authored a white paper urging
reform of local land use ordinances to permit urban and suburban homeowners to keep “microlivestock”—
“chickens, ducks, turkeys, geese, quail, rabbits, pygmy goats, [or] bees—on their property for food
production purposes.” MARY WOOD ET AL., supra note 12, at 2 (“Because current code provisions tend to
restrict these activities, however, cities responsive to their community’s growing interest in urban
homesteading must revise their city codes to allow microlivestock on residential lots.”). See also Salkin &
22
7
light on an area that is fundamentally misperceived by the community at large, local
officials, and even some scholars25 who erroneously believe that people can freely use
their private property for urban agricultural purposes without fear.
As issues surrounding sustainability and urban agriculture are becoming more
important to many citizens, and current conceptions of what is harmful to a community
are beginning to change, now is the time for municipalities to review their comprehensive
plans and ordinances to create a united scheme addressing urban homesteading and the
locavore lifestyle.26 This Article is the first to comprehensively describe existing
prohibitions on such uses, consider the justifications for overturning existing bans,
propose an approach that municipalities can take in actively addressing the intersection
between private property, urban agriculture and locavorism in their communities, and
situate this trend within the changing landscape of zoning more generally.27
In Part II, the Article provides examples of existing bans on urban agriculture,
including bans on front yard gardens, the sale of produce, and chickens. Part III presents
reasons that local governments initially enacted these bans pursuant to their police
powers. These justifications include traditional methods of zoning, the promotion of
public health and avoidance of nuisance, aesthetics, property values, and exclusion. This
Lavine, supra note 9; Barak Y. Orbach & Frances R. Sjoberg, Excessive Speech, Civility Norms, and the
Clucking Theorem, 44 CONN. L. REV. 1 (2011).
25
See, e.g., Catherine J. LaCroix, Urban Agriculture and Other Green Uses: Remaking the Shrinking City, 42 THE URBAN LAWYER 237 (2010) [hereinafter LaCroix, Urban Agriculture] (“As a practical matter,
gardening is permissible in any zoning district; a homeowner does not need zoning permission, for
example, in order to raise vegetables.”) This is plainly not universally true. See infra Part II.
26
In the past, “[h]ow local government policies affect[ed] and [were] affected by the food system [was]
unclear. Consequently, we [did] not know enough to help us plan more comprehensively for the urban food
system to enhance community food security.” Kameshwari Pothukuchi & Jerome L. Kaufman, Placing the
Food System on the Urban Agenda: The Role of Municipal Institutions in Food Systems Planning, 16 J.
AGRIC. & HUMAN VALUES 213, 218 (1999). Today, municipalities are doing just that.
27
There has not yet been much successful planning of food systems at the urban or municipal level. See id.
(“As urban and regional planners, we are struck by the piecemeal approach to planning for the food system
at the urban level. We think the urban food system needs to be looked at more comprehensively . . .
particularly through the assistance of the local planning agency.”).
8
Part also briefly describes the historical role of farming in the context of land use, and the
prior legal regimes that were used to resolve conflicting uses of land. It demonstrates that,
though there were valid historical reasons for the enactment of bans, those reasons no
longer apply to most current communities.
Part IV provides justifications for reversal of these anachronistic bans and for
municipal encouragement of urban homesteading practices. These include police powers,
the pursuit of civic virtue, and free market and efficiency reasons. This Part also critiques
these bans via a discussion of the harms of industrial agriculture and the benefits of urban
agriculture and locavorism, giving municipalities factual data and normative analysis to
back up a decision to support an urban agriculture scheme.
Part V looks forward. It presents concrete solutions that municipalities can adopt
to implement an urban agriculture program that allows citizens to use their land more
productively. The Part concludes by addressing changing conceptions of harm, and the
broader implications that a loosening of restrictions on urban agriculture may have for
land use law and the future of Euclidean zoning.
II.
Urban Agriculture Bans
a. Existing Bans on Vegetable Gardens and Produce
Municipalities use a variety of approaches to ban urban homesteading practices in
their communities. These generally include: (a) ordinances that prohibit the growth of
vegetables or fruit in certain zones; (b) ordinances that only allow expressly permitted
uses, and that do not mention vegetable gardening; (c) ordinances that prohibit gardens in
certain locations, such as the front yard, side yard, or median strip; and (d) ordinances
that prohibit or limit the sale of produce.
9
i. Prohibiting Growth in Certain Zones
One common ban prohibits a person from growing vegetables in certain zones,
either entirely, or without a discretionary permit. For example, the Los Angeles
Municipal Code was amended in 1960 to prohibit the growth of crops in residential
zoning districts, and to prohibit on-site sale of produce.28 However, if urban gardeners
wanted to grow and then sell their produce off-site, such as at farmers’ markets, they
could pay $15,000 to apply for a conditional use permit (“CUP”).29 Although this
ordinance was subsequently revised,30 on-site sales of produce from gardening are still
prohibited.31
ii. Only Allowing Expressly Permitted Uses
In other jurisdictions, very strict zoning ordinances only permit specific uses that
are expressly described in the ordinance. Thus, if the ordinance does not expressly
mention vegetable gardening, a person could be cited, fined, or eventually prosecuted for
28
Prior to that time, farming had been allowed within certain zones of the city. Truck Gardening Ordinance
Categorical Exemption Narrative, in L.A. City Attorney, Rep. No. R10-0128 (2010) (“Prior to 1946,
farming was allowed in the R1 zone with certain limitations. In 1946, permitted uses were expanded to
include truck gardening. After 1960, farming was no longer allowed, but truck gardening remained an
allowable use. . . .” Thus, the Los Angeles Municipal Code “is self-contradictory in that it permits truck
gardening without permitting the growth of virtually all produce.”); see also Sharon Cohoon, Legalizing
Urban Farming in LA -- The Food Flower Freedom Act, SUNSET, Oct. 21, 2009,
http://freshdirt.sunset.com/2009/10/legalizing-urban-farming-in-la-the-food-flowers-freedom-act.html.
29
Raquel Maria Dillon, Urban Gardeners Versus Zoning Laws, THE CHRISTIAN SCIENCE MONITOR, Feb.
16, 2010, http://www.csmonitor.com/The-Culture/Gardening/2010/0216/Urban-gardeners-versus-zoninglaws.
30
In advocating for revisions, supporters argued that allowing for growth of local foods and their sale at
local farmers’ markets—without requiring an expensive discretionary permit—was inherently tied to the
city’s goals of greening the city, improving nutrition, and building community and a sense of place. The
Food Flowers Freedom Act Needs Your Help, URBAN FARMING ADVOCATES, Oct. 9, 2009,
http://urbanfarmingadvocates.org/posted_by_ufa/the-food-flowers-freedom-act-needs-your-help/. Now,
individuals can grow produce to use on-site or to be sold off-site, without a permit. See generally Los
Angeles, Cal. Ordinance 181188 (June 8, 2010); see, e.g., LOS ANGELES MUNICIPAL CODE § 12.07(A)(6)
(truck gardening is a permitted use in suburban residential district).
31
LOS ANGELES MUNICIPAL CODE § 12.05(A)(16)(a)(19) (2010).
10
growing vegetables in that zone.32 This recently happened to a gardener in Dekalb
County, Georgia.33 The Dekalb County Code contains a general prohibition that states,
“no use of any land, building, structure or property shall be permitted unless expressly
and specifically authorized in the district within which said use is located . . . .”34
Pursuant to that provision, the County cited the gardener for growing vegetables on his
parcel, which was zoned R-85—a residential zone in which the Code does not list
growing vegetables (on any scale) as an allowable use.35
iii. Prohibiting Front Yard Gardens
Another common ban forbids growing vegetables in a front yard.36 Vegetable
gardens are often viewed as an affront to the “idealized”37 lawn that, in the United States,
comprises approximately 18 million acres of land surrounding homes.38 A front lawn is
the embodiment of “a visible statement” that a person makes to her neighbors and the
broader community.39 This statement is often one that suggests uniformity, conformity,
neatness and normalcy.40
32
See, e.g., County Sues Farmer, Cites Too Many Crops, WSBTV, Sept. 13, 2010,
http://www.wsbtv.com/news/news/county-sues-farmer-cites-too-many-crops/nFBrd/; DEKALB COUNTY
CODE § 27-6.
33
County Sues Farmer, Cites Too Many Crops, supra note 32 (Miller was cited for “growing too many
crops for the zoning”).
34
DEKALB COUNTY CODE § 27-6.
35
See id. §§ 27-163, 27-164. Miller subsequently obtained a rezoning of his property to R-200 (a single-
family residential district), which expressly allows vegetable growing as a permitted use. Id. § 27-63.
36
See, e.g., BEDFORD, OHIO, CODIFIED ORDINANCES § 1341.19 (1997) (“No vegetable gardens shall extend
beyond the front line of the house.”).
37
See Loren B. Byrne, Of Looks, Laws and Lawns: How Human Aesthetic Preferences Influence
Landscape Management, Public Policies and Urban Ecosystems, in EMERGING ISSUES ALONG URBANRURAL INTERFACES: LINKING SCIENCE AND SOCIETY CONFERENCE PROCEEDINGS 42-46, passim (D.
Laband, ed. 2005); see also Asmara M. Tekle, Lawns and the New Watershed Law, 95 MARQUETTE L.
REV. 213, 214 (2011) (describing the “idyllic” lawn).
38
See Cristina Milesi, et al., Mapping and Modeling the Biogeochemical Cycling of Turf Grasses in the
United States, 36 ENVTL. MGMT. no. 3, at 432 (2005) (“it appears that turf grasses would represent the
single largest irrigated ‘crop’ in the United States, occupying a total area three times larger than the surface
of irrigated corn.”).
39
James Charles Smith, The Law of Yards, 33 ECOLOGY L.Q. 203, 211 (2006); cf. Tekle, supra note 37, at
11
The press recently took interest in a front yard ordinance (“FYO”) in effect in
Sacramento, California. The ordinance, originally adopted in 1941, banned overgrown
plants by stating that front yards “shall be landscaped, irrigated and maintained with
primarily low groundcover or turf.”41 Community members supportive of urban
homesteading organized and convinced the city to revise the ordinance, which now
permits front yards to contain landscapes including annuals, perennials, shrubs and
trees.42 The new ordinance still requires that the growth be “mowed, trimmed, and/or
maintained as often as necessary to prevent overgrowth and blight.”43 Thus, aesthetics
and the prevention of blight—which could lead to a nuisance—are of concern to the town
in determining what belongs in a front yard.44 The revised ordinance is more prescriptive
213 (stating that there are currently “forty million acres of national front lawn” in the U.S.).
40
See Byrne, supra note 37, at 46 (Houses set back from the street with front lawns “were meant to foster a
sense of community and gave the front lawn stature as the symbol of a landowner’s contribution to keeping
the community looking neat and orderly.”).
41
SACRAMENTO, CAL. CODE § 17.68.010 A.1 (2009); see also Cheyenne Cary, Front yard ordinance
allows DIY food, SACREMENTO PRESS, July 17, 2009,
http://www.sacramentopress.com/headline/10830/Front_yard_ordinance_allows_DIY_food (“The main
concern of the old FYO was preventing overgrowth of plants, whether food or otherwise. It didn’t explicitly forbid food plants, but didn’t list them as legal either, whereas perennial grasses and decorative
plants were listed as legal groundcover.”).
42
SACRAMENTO, CAL. CODE § 17.68.010A.1.b (2009).
43
Id.; Did you know…Growing Vegetables in Your Front Yard is Against the Law?, SACRAMENTO
CITIZENS FOR SUSTAINABLE LANDSCAPES, www.organicsacramento.org
/documents/fyg_DIDYOUKNOW.pdf.
44
Anti-weed ordinances are common and have been in existence for years. See, e.g., City of St. Louis v.
Galt, 77 S.W. 876 (Mo. 1903) (weeds four to five feet tall, including sunflowers, were included under the
anti-weed ordinance enacted in 1900); People v. McKendrick, 468 N.W.2d 903 (Mich. Ct. App. 1991)
(“noxious vegetation” ordinance defined weeds as “all weeds, grass, brush, wildings, second growth, rank
vegetation or other vegetation that is not growing in its proper place, having a greater height than seven (7)
inches or spread of more than seven (7) inches.”).
12
than proscriptive,45 and a step toward a more permissive approach to locavore practices in
urban areas.46
Another FYO that made headlines is located in Northbrook, Illinois. The
Northbrook Code prohibits residents from growing anything in the front yard except
“shade trees, ornamental trees, evergreen trees, shrubs, flowering plants, ground cover
plants, and other native or ornamental grasses and plants.”47 A Northbrook woman lacked
sufficient sun in her backyard to grow vegetables, so she instead put a garden in her front
yard.48 A neighbor complained and the planning department asked her to remove the
garden.49 Several months later, the Northbrook Village Board declared that front yard
gardens are permitted under the existing Code, but set out guidelines for residents to
follow in order to “promote properly maintained gardens, [and] not allow areas to fall
into disrepair.”50
iv. Prohibiting or Limiting the Sale of Produce
Finally, some communities allow residents to grow vegetables on their property,
but ban the sale of produce for commercial gain in residential areas.51 For example, in
Detroit, Michigan, which has begun a broad urban homesteading program, the zoning
45
Proscriptive codes “restrict the kinds of development that can take place. [For example,] [t]hey specify
minimum sizes of lots; the types of developments allowed in particular zones; the amount of parking
required; and the width of standard streets.” Andres Duany & Emily Talen, New Urbanism And Smart
Growth: Making The Good Easy: The Smart Code Alternative, 29 FORDHAM URB. L.J. 1445, 1452 (2002).
In contrast, “[p]rescriptive codes are designed to encourage a certain type and quality of development.” Id.
46
The ordinance is not fully permissive, as it limits garden space to 30 percent of the front yard and height
to four feet. SACRAMENTO, CAL. CODE § 17.68.010A.1.c (2009). Thus, certain climbing vegetables or tall
plants might be prohibited in front yards.
47
NORTHBROOK, ILL. ZONING CODE § 9-107B(3) (2012).
48
Megan Graydon, This Year’s Harvest Could Be Last for Resident’s Garden, TRIBLOCAL, Aug. 23, 2010,
http://triblocal.com/northbrook/2010/08/23/this-years-harvest-could-be-last-for-residents-garden/.
49
Id.
50
Jeff Dana, Front-yard gardens OK, but there are guidelines to follow, TRIBLOCAL, Feb. 9, 2011,
http://triblocal.com/northbrook/2011/02/09/front-yard-gardens-ok-but-there-are-guidelines-to-follow/.
51
The Los Angeles ordinance, supra note 30 and accompanying text, is an example of this type of ban as
well.
13
code prohibits an individual from selling home-grown vegetables on-site.52 This is
problematic for those who see urban agriculture as an opportunity for transformation in
the area of municipal green economic development. Commentators believe that it is
important for members of a community to have the opportunity—both legally and
financially—to be able to grow and sell food to others in the community.53 The hope is
that this will create both a physical space and a sense of place that encourages individuals
to enhance their gardening skills, and perhaps create broader “food enterprises” in the
community, which could result in the sale of healthier food to more members of the
community.54 If an individual has a garden that is productive enough to feed him or
herself, and wants to make money by selling surplus harvest to others, these bans stifle
this form of green sector economic growth.55
In a twist on these ordinances, in some jurisdictions individuals are only allowed
to sell the produce they grow if they obtain a CUP from the municipality, which is
discretionary and often expensive. For example, a group of urban gardeners in San
Francisco was required to apply for an expensive CUP, which, depending upon the length
of the permit queue at the Planning Department could take up to six months to receive, in
order to sell their produce.56 Similarly, an urban homesteader and author in Oakland,
52
Dillon, supra note 29; DETROIT, MICH. ZONING CODE § 61-12-391 (2005). See also COLUMBIA, MO. CODE § 29-6(b) (2011).
53
See Sajid Farooq, Oakland Sprouting New Farming Laws, NBC BAY AREA, July 22, 2011,
http://www.nbcbayarea.com/news/local/Oakland-Looking-to-Update-Urban-Farming-Laws125974063.html.
54
Id. (quoting Aaron Lehmer, campaigns director for Bay Localize).
55
But see Emily Farris, Kansas City Farming for Cash, URBAN FARM ONLINE, June 22, 2010,
http://www.urbanfarmonline.com/urban-farm-news/2010/06/22/kansas-city-urban-farming.aspx (discussing
neighbors’ nuisance concerns with permitting onsite sales of produce in residential areas).
56
Zusha Elinson, Urban Farming for Cash Gains a Toehold in San Francisco, N.Y. TIMES, Aug. 13, 2010,
http://www.nytimes.com/2010/08/13/us/13bcfarm.html. The application itself is also daunting. See
Application Packet for Conditional Use Authorization, SAN FRANCISCO PLANNING DEP’T, http://www.sfplanning.org/Modules/ShowDocument.aspx?documentid=481 (last visited Feb. 7, 2012).
14
California was recently cited for selling food without a CUP.57 Many small farmers lack
sufficient funds to go through such a process, especially since there is a risk that the
permit might not be granted, or will only be granted if the applicant complies with
expensive mitigation measures; thus discretionary permits often serve as a barrier to
entry.58 Because each jurisdiction adopts its own zoning ordinance, few urban agriculture
bans are identical; however, the themes discussed in this section are common.
b . Existing Bans on Backyard Chickens
Perhaps more well known than bans on vegetable growing and selling are bans or
limitations on raising urban and suburban chickens, which have received much attention
in the popular press.59 The typical story is that one or more citizens want to raise chickens
for eggs (or perhaps, already raise chickens for eggs), but local zoning ordinances
prohibit keeping farm animals within city limits. These citizens organize, rally, and are
sometimes successful in overturning the existing ordinance.
Urban chicken regulations have existed for many years, in some cases preceding
zoning ordinances. For example, in 1877, the New York Sanitary Code was revised to
state:
57
City officials were alerted to Novella Carpenter’s activities by animal advocates who disapproved of her
selling rabbit potpies. Chip Johnson, Novella Carpenter Could Use a Hand, Oakland, SF GATE, Apr. 5,
2011, http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2011/04/05/BAFG1IPTFT.DTL. Oakland now has
an interim measure in place while it undertakes a comprehensive examination of its urban agriculture
policies. See Urban Agriculture Citywide Update, CITY OF OAKLAND, CAL. PLANNING & ZONING, http://www2.oaklandnet.com/Government/o/CEDA/o/PlanningZoning/OAK029859 (last visited Jan. 28,
2012); OAKLAND, CAL. ZONING CODE § 17.35.01(L7) (2011) (“Crop and Animal Raising is only permitted
upon the granting of a Conditional Use Permit”).
58
Elinson, supra note 56. The San Francisco gardeners successfully challenged the ordinance requiring a
CUP, with the city acknowledging that CUPs are “‘a bit of a barrier.’” Id. The challengers wrote a letter to
the Zoning Administrator after learning of the CUP and encouraged others to write. Subsequently, the
Mayor’s office introduced an ordinance, which was passed. See A Letter to the SF Planning Commission, LITTLE CITY GARDENS, May 12, 2010, http://www.littlecitygardens.com/page/6/; see also Success!, LITTLE
CITY GARDENS, Feb. 18, 2011, http://www.littlecitygardens.com/page/4/; Let’s clarify SF zoning code!, LITTLE CITY GARDENS, May 10, 2010, http://www.littlecitygardens.com/page/7/.
59
Infra notes 66 - 67.
15
[N]o live chickens, geese, ducks, or other fowls shall be brought into, or
kept, or held, or offered for sale, or killed in any yard, area, cellar, coop,
building, premises or part thereof, or on any sidewalk or other place
within the built-up portion of the City of New York . . . without a special
permit in writing.60
In New Jersey in 1943, a woman was charged with violations of the building code for
having constructed a chicken coop in her backyard.61
Backyard chicken bans are now common, and there is a burgeoning literature
dedicated to their existence and efforts to overturn them. For example, in a recent article
Professor Salkin summarizes regulations related to permitting chickens in residential
areas,62 while two others describe the externalities that result from citizen objection to the
overturning of chicken bans as an example of what they term the “clucking theorem.”63
Like prohibitions on produce growth, bans on backyard chickens exist in many
forms. Some communities ban farm animals or poultry from residential areas.64 Some
only permit a limited number of chickens, or permit hens but ban roosters due to noise
concerns.65 Others require setbacks that effectively prohibit construction of any accessory
structures, such as chicken coops, particularly on smaller lots.66 Homeowners frequently
60
N.Y.C. SANITARY CODE § 197 (1877) (cited in Orbach & Sjoberg, supra note 24, at 19).
Women Fight Curb on Chicken Raising, N.Y. TIMES, Jan. 1, 1943, at 18 (“Then the borough fathers
stepped in, informed Mrs. McLeod she was violating the building code, enacted in 1824, and a 1927 zoning
ordinance forbidding the erection of ‘accessory’ buildings on premises without a permit.”).
62
Patricia E. Salkin, Feeding the Locavores, One Chicken at a Time: Regulating Backyard Chickens, 34
ZONING AND PLANNING LAW REPORT (Mar. 2011) [hereinafter Salkin, Feeding the Locavores].
63
Orbach & Sjoberg, supra note 24, at 6.
64
See, e.g., AURORA, COLO. CODE OF ORDINANCES §§ 14-1 & 146-1203 (no livestock, which includes
chickens, permitted within the city except in agricultural zones); WHEATON, ILL. CODE OF ORDINANCES §§ 14-1 & 14-99 (1999) (it is unlawful to keep livestock within city limits, where livestock includes chickens,
unless chickens are for a 4-H project).
65
See, e.g., STAMFORD, CONN., CODE § 111-6 (2010) (“[n]o person shall keep any rooster in such location
that the crowing thereof shall be annoying to any person occupying premises in the vicinity”); ANN ARBOR, MICH., CODE tit. IX, ch. 107, § 9:42(3)(b) & (d) (2011) (permitting up to four chickens, but prohibiting
roosters); PORTLAND, ME., CODE § 5-402(a) & (b) (2009) (allowing up to six female chickens per lot);
SEATTLE, WASH., CODE § 23.42.052(C)(2) (2010) (allowing up to eight fowl per lot, but banning roosters).
66
See, e.g., ALEXANDRIA, VA., CODE § 5-7-2 (1963) (fowl cannot be kept two hundred feet from any
residence); BATON ROUGE, LA., CODE § 14:224(c)(1)(b) (1993) (requiring coops to be ten feet from the
nearest property line and fifty feet from the nearest residence); NAPLES, FLA., ZONING CODE § 58-52(5)
61
16
run afoul of laws requiring a certain lot size in order to house chickens. For example, a
Linthicum, Maryland woman had five egg-laying chickens in her backyard for over two
years until a neighbor complained of smells and rats.67 Because her yard was less than the
acre required to keep chickens, and her coop encroached on the 50-foot setback, the
County required her to dispose of her chickens.68
Although these bans are common, citizen outcry or interest in promoting
sustainable practices has led some city councils to alter their rules. Municipalities large
and small are beginning to revise these ordinances to allow for the keeping of at least a
few backyard chickens.69 That said, a number of localities that have considered
overturning existing bans have opted not to.70 The reasons for this will be discussed infra
in Part III.
III.
Justifications for Bans on Urban Agriculture
Although this Article asserts that bans on urban agriculture are generally
anachronistic, understanding why they are out of date requires an understanding of the
reasons that they were enacted in the first instance. Those reasons are numerous and
diverse, and there are legitimate bases, pursuant to a municipality’s police powers, for
(2011) (enclosures must be thirty feet from any lot line and one hundred feet from neighboring residences).
See also Salkin & Lavine, supra note 9, at 621-2 (setbacks “bar chickens from particularly dense
neighborhoods, prevent residents from keeping large flocks, and ensure that chickens have enough space to
live comfortably. However, if such requirements are too restrictive, they may create obstacles to chicken
raising in neighborhoods otherwise suited for that use.”).
67
Tim Pratt, County: Linthicum chickens must go: Coop on property doesn’t meet county setback
requirements, MD GAZETTE, Oct. 8, 2011, http://www.mdgazette.com/content/county-linthicum-chickensmust-go.
68
Id.; see also Corey de Vera, Willard family told to get rid of chickens: Willard aldermen open to
changing ordinance, NEWS-LEADER, July 16, 2011, http://www.newsleader.com/article/20110716/NEWS01/107160348/Willard-family-told-get-rid-chickens (lot too small).
69
See MARY WOOD ET AL., supra note 12, at 48.
70
See, e.g., Orbach & Sjoberg, supra note 24, at 35-6 (discussing Iowa City, Iowa, where “the 2009
campaign to legalize urban fowl failed . . . articulating concern that students may move and leave behind
their chicken pets;” Franklinton, Louisiana, whose Mayor said “[y]ou can’t raise animals or livestock in the
city;” and Durango, Colorado, where the city worried that “chickens would threaten its modern image.”).
17
enacting and upholding these bans. This Part will describe and evaluate some of these
justifications.
a. Traditional Ideals Underpinning Euclidean Zoning
Although locavorism is now a commonplace idea, there is a sense that many land
use laws are “stuck in another era,” when farming in residential areas was viewed as a
harm to be avoided.71 To understand why these outdated laws were enacted, and why
they still exist today, it is necessary to begin with a brief bit of history. Prior to the
modernization of refrigeration and food preservation, communities relied on subsistence
farming to feed themselves in ways that were both local and seasonal. Indeed, nearly all
early residents of the Thirteen Colonies were subsistence farmers.72 The federal
government encouraged private ownership for farming through land disposal policies,73
implementing Thomas Jefferson’s professed desire for a nation of “yeoman farmers” who
were self-sufficient and eschewed the need for substantial governmental regulation.74
71
Elinson, supra note 56.
See, e.g., BRUCE C. DANIELS, THE CONNECTICUT TOWN: GROWTH AND DEVELOPMENT, 1635-1790, at
140-41 (1979). The evolution of land in the United States is tied to the evolution of farms. Native
Americans grew the country’s first subsistence gardens. JOHN T. SCHLEBECKER, WHEREBY WE THRIVE: A
HISTORY OF AMERICAN FARMING 1607-1972, at 25 (1975). Later, colonists engaged in subsistence farming,
but only after the Virginia governor ordered them to “plant a corn patch or face starvation” in 1609 due to
unreliable food shipments from abroad. Id. at 36 (“Neither the settlers nor the capitalists expected
commercial farming to become established. The promoters expected their colonists to become selfsufficient in food, but . . . their main efforts would be to obtain commodities for trade in Europe.”).
73
SCHLEBECKER, supra note 72, at 57-65 (discussing the Homestead Act of 1862). The purpose of land
distribution policies “was to []distribute [land] to farmers, and the number of farmers and farms was to
grow as rapidly as possible.” Id. at 68.
74
See, e.g., THOMAS JEFFERSON, NOTES ON THE STATE OF VIRGINIA: QUERY XIX: MANUFACTURES (1782),
reprinted in THOMAS JEFFERSON: SELECTED WRITINGS 52 (Harvey C. Mansfield, Jr. ed., 1979); Stanley N.
Katz, Thomas Jefferson and the Right to Private Property in Revolutionary America, 19 J. L. & ECON. 467,
470-74, 480-81 (1976); Michael C. Dorf, The Good Society, Commerce, and the Rehnquist Court, 69
FORDHAM L. REV. 2161, 2178 (2001) (“Jefferson disdained large-scale commerce and its effects on
character; he envisioned a nation of self-sufficient yeoman farmers participating in public life to deliberate
about the common good, but he was generally skeptical of all exercises of government power.”); Nadav
Shoked, The Reinvention of Ownership: The Embrace of Residential Zoning and the Modern Populist
Reading of Property, 28 YALE J. ON REG. 91, 124 (2011) (“Jefferson was convinced that the yeoman’s
economic self-reliance assured his freedom and political autonomy. Hence, increasing the number of
American yeomen strengthened the national capacity for self-determination. Accordingly, old
72
18
Over time, small, individually-owned farms were sold and combined, resulting in a
transition to larger farms.75 At the same time, technological advancements in farm
equipment made larger farms practically and economically feasible, as well as necessary
to stay competitive.76 As a result of improved technologies, farmers were able to farm
larger acreages, obtain higher crop yields, and reduce their work force.77
While farms were expanding, individuals were moving closer together: by 1920, a
majority of Americans lived in cities or suburbs.78 Large manufacturing plants often
located next to temporary housing, making cities unsanitary and crowded.79 As urban
areas expanded to meet the demand for business and residences, there was a clash
between agricultural and residential uses.80 Urban areas squeezed out gardens to make
conservatives and old progressives both viewed the proliferation of small landholding as a bulwark of
democracy.”); James Phillips, American Agrarianism’s Answers to the Nation’s (In)securities, 9 CONN.
PUB. INT. L.J. 343, passim (2010) (discussing Jefferson’s yeoman farmer ideal); WILLIAM A. FISCHEL, THE
ECONOMICS OF ZONING LAWS: A PROPERTY RIGHTS APPROACH TO AMERICAN LAND USE CONTROLS 11
(1985) [hereinafter FISCHEL, ECON. OF ZONING LAWS] (suggesting that federal “land policy was []
deliberately designed to fulfill the Jeffersonian ideal of independent yeoman farmers”).
75
Morgan L. Holcomb, Book Review: Our Agriculture Policy Dilemma: The Omnivore's Dilemma: A
Natural History of Four Meals, by Michael Pollan (2006), 8 MINN. J. L. SCI. & TECH. 249, 257 (2007). In
1910, the average farm was 138.13 acres. SCHLEBECKER, supra note 72, at 207. In 1950 the average farm
was 215.49 acres. Id. Today, the average farm is 443 acres. Holcomb, supra note 75, at 257.
76
Alfonso Morales & Gregg Kettles, Healthy Food Outside: Farmers’ Markets, Taco Trucks, and Sidewalk
Fruit Vendors, 26 J. CONTEMP. HEALTH L. POL’Y 20, 30 (2009) (Discussing advances in technology,
including “changes in agricultural production, refrigeration technology, and intermodal transportation” in
the 1930s).
77
SCHLEBECKER, supra note 72, at 30, 145. For example, “[p]rior to mechanization, it took three hours and
forty minutes for a farmer to harvest one bushel of wheat; by the 1880s the farmer’s grandson needed only
ten minutes to produce the same bushel.” From Manpower to Horsepower: Technological Change in the
Nineteenth Century, IOWA STATE UNIV. CENTER FOR AGRIC. HISTORY RURAL STUDIES,
http://www.history.iastate.edu/agprimer/Page23.html (last visited Aug. 29, 2011).
78
DAVID M. KENNEDY, FREEDOM FROM FEAR: THE AMERICAN PEOPLE IN DEPRESSION AND WAR, 19291945, at 16 (1999); Shoked, supra note 74, 128 (“By the end of the 1920s, nearly a third of the
metropolitan population lived outside the central city.”).
79
MUMFORD, supra note 11, at 431-4; see also Carolyn B. Ramsey, Intimate Homicide: Gender and Crime
Control, 1880-1920, 77 U. COLO. L. REV. 101, 157 (2006) (“Plagued by adult crime, juvenile gangs, and
inadequate law enforcement, Denver was a rough and dirty city in the late nineteenth century. Heatless tent
slums rife with disease sprawled on the banks of the Platte River, into which raw sewage drained until the
mid-1880s. Citizens raised chickens and dairy cows on their urban property . . . .”).
80
“[F]ewer urban dwellers ha[d] any farm background, they [were] less tolerant of the smells, noise, dust
and other inconveniences that result from farm operations.” H. W. Hannah, Farming in the Face of
Progress, 16 FRANCHISE L.J. 8, 9 (1997). See, e.g., Twigg v. County of Will, 627 N.E.2d 742 (Ill. App. Ct.
1994) (testimony that “agricultural use was incompatible with residential development to the extent that
19
room for the more profitable uses,81 and took over farmland, which resulted in the
elimination of some farms and the pushing of others further from the city center.82 This
change in land use patterns meant that food had to travel further to reach city-dwellers.83
However, because larger farms could produce more food, more quickly, and because
supermarkets were available and sold many products,84 individuals were relieved of
pressure to produce their own. As a result, residential landscapes changed as yards
replaced gardens.85
Neighbors and courts discovered that the traditional common law tools that had
been used to constrain land use—nuisance and restrictive covenants—were no longer
effectively protecting the new suburban “utopia”86 and the sanctity of its homes, most of
which were inhabited by the middle- and upper-classes.87 Nuisance law, a judicial land
use control, provided a cause of action for the substantial interference with the use and
mail boxes and garbage cans along the roadways might hinder the movement of farm machinery, or
children playing in the area might damage terraces and downspouts”).
81
MUMFORD, supra note 11, at 428, 434 (The demand for “pecuniary exploitation . . . reduced the rear
garden to a backyard for drying clothes [as residences were built] back to back” and as people paved “[t]he
court between the buildings . . . prohibit[ing] even the most pinched garden.”).
82
See, e.g., Hannah, supra note 80, at 9; Tamara Mullen, Note, The McMansion: Architecture’s Role in
Facilitation Urban Sprawl and Farmland Loss, 12 DRAKE J. AGRIC. L. 255, 257-9 (2007); Thomas Benton
Bare III, Recharacterizing the Debate: A Critique of Environmental Democracy and an Alternative
Approach to the Urban Sprawl Dilemma, 21 VA. ENVTL. L.J. 455, 455-6 (2003). This pattern of
development continues today. Mullen, supra note 82, at 256 (“[L]and masses the size of Delaware are
paved over every year to make way for expanding hypersprawl.”).
83
Pothukuchi & Kaufman, supra note 26, at 215 (“As local farms disappeared, food simply came from
more distant places, and from farms that were more intensively cultivated by increasingly corporate
players.”).
84
Between 1934 and 1938 the amount of available frozen foods increased from 10 million pounds to 250
million pounds. SCHLEBECKER, supra note 72, at 231. The modern supermarket originated in the 1920s. Id.
at 232. By 1969, supermarkets accounted for 52.4 percent of the food retailing business. Id. at 293; MARION
NESTLE, WHAT TO EAT 17 (2006).
85
KENNETH T. JACKSON, CRABGRASS FRONTIER: THE SUBURBANIZATION OF THE UNITED STATES 54
(1985) (providing a history of suburban development in America, and stating, “[b]etween 1825 and 1875,
middle-class Americans adopted a less utilitarian expectation about residential space. They no longer
needed herbs and vegetables from gardens, and . . . a smooth lawn replaced the rough meadow cut by
scythe or sheep.”).
86
MUMFORD, supra note 11, at 428, 486.
87
Id. at 493 & 495 (“the suburb . . . tended to remain a one-class community, with just a sufficient fringe of
tradesmen and servants to keep it going—the latter often condemned to use the central metropolis as their
dormitory.”).
20
enjoyment of one’s land that resulted from activities of another that were negligent,
reckless and unintentional, or intentional and unreasonable.88 In the land use context,
individuals typically brought nuisance suits for intentional actions.89 Courts used
different tests to determine what actions were unreasonable.90 Nuisance suits are still
used today, but the consensus is that they are more successful when used to control small,
localized harms;91 the conflict between agriculture and residential uses proved to need a
larger-scale solution. From a private, contractual law perspective, individuals also bound
themselves to use or not use their land in certain ways via real covenants that ran with the
land.92 These covenants are still quite common today in the form of CC&Rs (covenants,
conditions and restrictions), which are recorded documents that control the use of
property in many residential subdivisions.93
88
JESSE DUKEMINIER, ET AL., PROPERTY 641-2 (6th ed. 2006).
Id. at 642-3. For an action to be intentional, the actor needed only realize that his action was likely to
cause the result—he did not need to act for the purpose of causing it. Id. at 642.
90
Some courts determined that if a harm passed a given threshold, it was unreasonable. See Jost v.
Dairyland Power Coop., 172 N.W.2d 647 (Wis. 1969). Others applied a utilitarian test to determine
whether the gravity of the harm outweighed the benefit of the actor’s conduct. The Restatement adopts this
view. RESTATEMENT (SECOND) OF TORTS § 826(1) (1979).
91
See, e.g., Robert C. Ellickson, Alternatives to Zoning: Covenants, Nuisance Rules, and Fines as Land
Use Controls, 40 U. CHI. L. REV. 681, 762 (1973) [hereinafter Ellickson, Alternatives to Zoning] (“Many
land use activities now constrained by zoning ordinances raise only localized threats [as opposed to
pervasive threats] that would be better handled through private nuisance remedies . . .”); DUKEMINIER, ET AL., supra note 88, at 665 (“nuisance litigation is ill-suited to other than small-scale, incidental, localized,
scientifically uncomplicated pollution problems”); Denise E. Antolini, Modernizing Public Nuisance:
Solving the Paradox of the Special Injury Rule, 28 ECOLOGY L.Q. 755, 775-6 (quoting 1 WILLIAM H.
RODGERS, JR., ENVIRONMENTAL LAW: AIR AND WATER 2.1, at 33 (1986)) (“As a remedy particularly well-
suited for ‘localized’ problems, it has ‘contributed consistently to the just resolution of neighborhood
environmental conflict.’”). Indeed, “[n]uisance law has largely been superseded by zoning and other police
power controls.” FISCHEL, ECON. OF ZONING LAWS, supra note 74, at 27 (attributing this trend to “the lack
of prospective control, the high cost of litigation, and the tendency to use the extreme remedy of the
injunction rather than award damages”).
92
DUKEMINIER, ET AL., supra note 88, at 740 (6th ed. 2006).
93
See, e.g., Covenants, Conditions and Restrictions, CAMERON PARK, CAL. COMMUNITY SERV. DIST., http://cameronpark.org/ccrs.html (last visited Jan. 17, 2012); Declaration of Covenants, Conditions and
Restrictions for Alary Farm Subdivision, ALARY FARM, N.M., www.alaryfarm.com/alacovee.pdf;
Covenants, Conditions, and Restrictions Applicable to Vineyard Estates, EIPERT-NICELY DEVELOPMENT, LLC, www.vineyardestatesberea.com/.../Recorded%20New_Restrictions.pdf.
89
21
Although these common law controls were sufficient for a time, as technology
advanced, industrial uses grew louder, noisier and dirtier; automobiles developed; cities
grew more crowded; and people began to spread out, states and municipalities began to
consider regulatory approaches to controlling land use.94 States adopted zoning enabling
acts that empowered localities to implement land use regulations “for the purpose of
promoting health, safety, morals or the general welfare of the community.”95 Pursuant to
this authority, municipalities began to enact zoning ordinances96 to regulate aspects of
city life, such as the height and bulk of buildings, the size of yards, and most importantly,
the use of buildings and land.97 Further, as more states moved toward “home rule”98
through state constitutional amendments and statutes, their municipalities were freed
from strict adherence to the provisions of the enabling acts.99
As zoning flourished, some questioned its constitutionality. In 1926, The United
States Supreme Court considered the question in Village of Euclid, Ohio v. Ambler Realty
Co., and determined that comprehensive zoning was constitutional.100 The divide
between urban and suburban, and rural and agricultural lands as we know them today
94
STANISLAW J. MAKIESLSKI, POLITICS OF ZONING: NEW YORK 1916-1960 (1966).
U.S. DEP’T OF COMMERCE, STANDARD STATE ZONING ENABLING ACT (1926), reprinted in 5 KENNETH
H. YOUNG, ANDERSON’S AMERICAN LAW OF ZONING § 32.01 (4th ed. & Supp. 2004).
96
New York City is often credited with creating one of the first comprehensive zoning ordinances. See
MAKIESLSKI, supra note 94. During the early 1900s, New York developers constructed skyscrapers that cut
off the light and air that residential neighbors desired. At the same time, fancy retail stores on 5th Avenue
disliked the influx of immigrants who worked at the new garment factories in their neighborhoods. Thus, a
coalition of forces banded together to petition for a comprehensive regulatory scheme to control who and
what could be located where. Id. See also Basiouny, supra note 2.
97
Many early ordinances included a zone that allowed little more than single-family residential homes;
even apartments were prohibited from these zones. See, e.g., Village of Euclid, 272 U.S. at 380 (ordinance
categorizing land uses into a hierarchy of zones, where the most restrictive permitted only “single family
dwellings, public parks, water towers and reservoirs, suburban and interurban electric railway passenger
stations and rights of way, and farming, non-commercial greenhouse nurseries and truck gardening,” and
forbid two-family dwellings, apartments, municipal buildings, and commercial and industrial uses).
98
Home rule municipalities have broad, general powers. ELLICKSON & BEEN, supra note 20, at 29.
99
See, e.g., White v. City of Dallas, 517 S.W.2d 344 (Tex. Civ. App. 1974) (determining that a home-rule
city was able to zone more broadly than the text of the enabling act would suggest).
100
Village of Euclid, 272 U.S. 365.
95
22
traces its origin to the type of zoning that the Euclid Court upheld, known as Euclidean
Zoning.101 The idea behind Euclidean Zoning is that different uses that are thought to be
incompatible should be kept separate from one another.102 This was especially true for
industrial uses, which were to be separated from residential uses for fear that they would
likely cause nuisances if they were located nearby. Specifically, the Court viewed singlefamily homes as the highest and best use of property,103 and thus those structures were to
be separated from every other use.104 Under the aegis of promoting health, safety, welfare
and morals of the community, municipalities zoned out the less civilized, potentially
nuisance-causing uses, including agriculture.105 This line of reasoning explains why both
gardening and keeping farm animals are prohibited in many localities that hew to
traditional Euclidean zoning.106
In addition to validating zoning, Euclid arguably also ushered in a new conception
of property rights; in exchange for the security that one’s neighborhood environment (and
thus, property value) would be preserved, one gave up much of the freedom to use and
101
“In 1840 suburbs had not yet developed into a recognizable entity, distinct from either the city or the
farm.” JACKSON, supra note 85, at 45.
102
See Shoked, supra note 74, at 95, 99 (2011) (describing property ownership in “post-Euclid America” as
signifying “security rather than freedom” and property rights as protecting “tranquil security” rather than
“dynamic development”).
103
Village of Euclid, 272 U.S. at 394 (referring to apartments as “mere parasites”).
104
See Salkin, From Euclid to Growing Smart, supra note 2, at 110 (“[Z]oning was viewed as a means to
an end - the end being to separate incompatible land uses because there was an inherent conflict between
uses that were not identical (e.g., residential, agricultural, business and commercial). . . . the historical use
of zoning [was] merely a tool to separate what had been viewed as incompatible land uses.”).
105
Village of Euclid, 272 U.S. at 394 (describing apartments as “parasites”); see also Rachel Medina & A.
Dan Tarlock, Addressing Climate Change at the State and Local Level: Using Land Use Controls to
Reduce Automobile Emissions, 2 SUSTAINABILITY 1742, 1745 (2010) (“[Euclid] thus enshrined the lowdensity, single-family house, protected from alien, lower land uses such as apartments, as the highest form
of civilized land-use.”).
106
Once a municipality was zoned and “the impurities of agriculture [were] removed, a new settlement was
born, one that commanded cleaner landscaping: well manicured, sterile varieties of trees, shrubs, and
ground covers.” NORDAHL, supra note 16, at 3.
23
develop her property.107 Thus, Euclid not only impacted a home’s surroundings—by
establishing what could and could not be developed next to the home—but it also
modified the sticks in the homeowner’s bundle of rights by reigning in much of the
flexibility that homeowner previously had to use her land as she pleased.108
The values, ideas, and assumptions that are embodied in Euclidean zoning
ordinances are founded in traditional concepts of the police powers: protection of
children, upper- and middle-class families,109 property values, the sanctity and quiet of
the suburbs, and a very specific sense of place. In 1974, the Supreme Court famously
explained in Village of Belle Terre v. Boraas that:
A quiet place where yards are wide, people few, and motor vehicles
restricted are legitimate guidelines in a land-use project addressed to
family needs. The police power is not confined to elimination of filth,
stench, and unhealthy places. It is ample to lay out zones where family
values, youth values, and the blessings of quiet seclusion and clean air
make the area a sanctuary for people.110
Thus, restrictions developed not just due to the perception that agricultural uses caused
specific harms, but also because of a cultural sense that agricultural (and industrial) use
was not socially appropriate in the vicinity of homes and families. These values still serve
as a justification for many bans that prohibit urban agriculture in residential areas.
Often, municipalities that ban front yard gardens and backyard chickens seek to
appeal to a certain type of potential resident—one who seeks a community that embodies
107
Shoked, supra note 74, at 99-100 (2011). But cf. Keith H. Hirokawa, Property Pieces in Compensation
Statutes: Law’s Eulogy for Oregon’s Measure 37, 38 ENV. L. 1111, 1144 (2008) (noting that “it is arguable
that these changes [in the right to use property due to zoning] did not affect the substance or character of
the property right: zoning did not alter the basis for the nuisance limitation on the property right . . . . The
only change of substance was in the manner and forum in which the determination was made.”).
108
Conversely, zoning also created value by restraining neighbor A’s ability to impact neighbor B’s
property.
109
Village of Euclid, 272 U.S. 365.
110
Village of Belle Terre v. Boraas, 416 U.S. 1, 9 (1974).
24
Euclidean ideals of family and traditional values.111 The idea that different localities are
designed for, and thus appeal to, different types of people ties into the theory set forth by
Charles Tiebout in his seminal article, A Pure Theory of Local Expenditures.112 There,
Tiebout views people not as residents or members of local governments-cum-democratic
polities, but rather as “consumer-voters” who express their preferences by seeking out
municipalities that provide the public goods and services that appeal most to them. Thus,
it makes sense that different communities would have different rules and provide
different services so as to appeal to and attract different “consumers.” And, some
communities will likely continue to hold to traditional Euclidean values so as to attract
residents who hold those values.
b. Promoting Public Health and Avoiding Nuisances
Another reason that municipalities enact bans on urban agriculture is the
protection of public health and the prevention of nuisance claims, pursuant to their police
powers.113 States are presumed to have inherent, plenary authority to regulate, subject to
the limits of the federal constitution and the states’ constitutions. Traditionally, local
governments are viewed as creatures of the state, and derive their powers from the
111
See generally DAVID TRACEY, URBAN AGRICULTURE: IDEAS AND DESIGNS FOR THE NEW FOOD
REVOLUTION (2011).
112
See generally Charles M. Tiebout, A Pure Theory of Local Expenditures, 64 J. POL. ECON. 416 (1956).
113
See, e.g., HELGA OLKOWSKI ET. AL., THE INTEGRAL URBAN HOUSE: SELF RELIANT LIVING IN THE CITY
252 (2008) (“Most municipal ordinances restricting livestock were made to protect urbanites from the
smell, noise, flies, and general nuisance-causing behavior associated with farm animals in the city . . .”);
Phillips v. Town of Oak Grove, 968 S.W.2d 600, 608 (Ark. 1998) (noting that “Oak Grove is legislating
under its police power when it states that its purpose is to protect the residents of the town from the
deleterious effects of commercial broiler activities, to protect against offensive or noxious odors, and to
protect the order, peace, comfort, convenience, safety, general welfare, health and prevent injury from
offensive or unhealthy matters.”); Becker v. Arnfeld, 466 P.2d 479, 480 (1970) (finding that “the clear
intent expressed in the covenants as a whole is to create a desirable, pleasant residential area”).
25
state.114 This is consistent with Dillon’s rule, which suggests that all local power must be
expressly granted.115 However, most states now allow home rule by municipalities, which
empowers local governments to regulate without seeking express authorization from the
state.116 Localities generally have the power to pass regulations and act in the interest of
public health, safety, and welfare unless the state expressly retains that power.117 These
police powers have been interpreted broadly;118 a court recognizing the breadth of the
power to regulate observed that “[t]he promotion of the general welfare does not rigidly
limit governmental authority to a policy that would ‘scorn the rose and leave the cabbage
triumphant.’”119 (However, it could!).120 Although many municipalities do not think of
114
Hunter v. City of Pittsburg, 207 U.S. 161, 178 (1907) (localities are “created as convenient agencies for
exercising such of the governmental powers of the State as may be entrusted to them”).
115
Localities “possess[] and can exercise the following powers, and no others: First, those granted in
express words; second, those necessarily or fairly implied in or incident to the powers expressly granted;
[and] third, those essential to the accomplishment of the declared objects and purposes of the corporation.”
1 JOHN F. DILLON, COMMENTARIES ON THE LAW OF MUNICIPAL CORPORATIONS 449-50 (5th ed. 1911). See,
e.g., TransDulles Center, Inc. v. USX Corp., 976 F.2d 219, 224 (4th Cir. 1992) (same). All states have
adopted enabling legislation that expressly grants zoning powers to municipalities. See ELLICKSON &
BEEN, supra note 20, at 29.
116
See DALE KRANE, ET AL., HOME RULE IN AMERICA: A FIFTY-STATE HANDBOOK 14 (2001).
117
See, e.g., Hodge, supra note 163, at 130 (“Primary responsibility for protecting the public’s health,
however, is held by the states (and local governments via delegated state authority).”); Anthony J. Samson,
A Proposal to Implement Mandatory Training Requirements for Home Rule Zoning Officials, 2008 MICH.
ST. L. REV. 879, 886 (2008) (“Absent expressed or implied powers to regulate a particular activity, home
rule municipalities may rely on their police powers to safeguard and promote public health, safety, morals,
and general welfare.”); Catherine J. LaCroix, SEPAs, Climate Change, and Corporate Responsibility: The
Contribution of Local Government, 58 CASE W. RES. L. REV. 1289, 1295 (2008) (“[L]ocal governments
have land use regulatory power and power to adopt local environmental regulations, both through state
legislation authorizing zoning, comprehensive planning, or other regulation, and through home rule
power.”).
118
They “justify virtually any exercise of [] local government to preserve, protect, or promote the public’s
health that does not infringe upon constitutionally-protected individual or community rights.” Hodge, supra
note 117, at 130. See also Berman v. Parker, 348 U.S. 26, 33 (1954) (“The concept of the public welfare is
broad and inclusive.”); Judith A. Stoll, Home Rule and the Sherman Act After Boulder: Cities Between A
Rock and A Hard Place, 49 BROOK. L. REV. 259, 299 n. 191 (1983) (The term is “broad enough to
encompass all the powers by which local government is authorized to protect public welfare. . . . [and] may
be applied to regulate activities which may or may not be ‘integral’ or ‘governmental’ insofar as those
activities affect public health and safety.”).
119
Buhler v. Stone, 533 P.2d 292, 294 (Utah 1975) General welfare considerations include “the taking of
reasonable measures to minimize discordant, unsightly and offensive surroundings; and [preservation of]
the beauty as well as the usefulness of the environment.”).
120
While a municipality could adopt a policy banning flowers and requiring vegetables, it would be subject
to the limits of democracy: voters would likely make this result impossible or impermanent.
26
food as an urban or local issue,121 localities are in a fine position to regulate many food
issues,122 and may do so pursuant to their police powers.
Further, as discussed earlier, private nuisance law protects an individual from
substantial interference with the use and enjoyment of her property when another is
acting intentionally and unreasonably.123 Thus, a locality might not want to allow
intensive urban gardening due to fears that the fresh, and subsequently rotting, fruit and
vegetables will attract pests. A compost pile, for example, if located too close to a
neighbor’s home, may smell and attract flies or rats.124
Locavores who wish to raise chickens are harmed by bans that prevent them from
doing so. However, that harm must be balanced against the harm that their neighbors
121
“When people think of urban policy, [] food issues are hardly given a second thought.” Pothukuchi &
Kaufman, supra note 26, at 216-17. Perhaps this is because most U.S. food policy is dictated at the federal
level. See, e.g., Food, Conservation, and Energy Act of 2008, H.R. 6124, 110th Cong. (2008). See also
David Burnett, Note, Fast-Food Lawsuits and the Cheeseburger Bill: Critiquing Congress’s Response to
the Obesity Epidemic, 14 VA. J. SOC. POL’Y & L. 357, 373 (2007) (“Congress influences the food that
Americans eat with food subsidies, food-safety laws, nutritional standards, and regulations governing the
ingredients, packaging, marketing, and sale of food intended for public consumption.”); see generally U.S.
DEP'T OF AGRIC., ECON. RES. REP. NO. 97, LOCAL FOOD SYSTEMS: CONCEPTS, IMPACTS AND ISSUES 35-39
(2010), www.ers.usda.gov/Publications/ERR97/ERR97.pdf; A. Bryan Endres & Jody M. Endres,
Homeland Security Planning: What Victory Gardens and Fidel Castro Can Teach Us in Preparing for
Food Crises in the United States, 64 FOOD DRUG L.J. 405 (2009); Emily J. Schaffer, Is the Fox Guarding
the Henhouse? Who Makes the Rules in American Nutrition Policy?, 57 FOOD DRUG L.J. 371 (2002).
122
Food policy has dramatic impacts on localities, as it affects “the local economy, the environment, public
health, and quality of neighborhoods.” Pothukuchi & Kaufman, supra note 26, at 216-17 (emphasis
omitted); see also NORDAHL, supra note 16, at 53 (“Programs, policies, funding strategies, and
maintenance regimens of any urban agriculture endeavor will be difficult to implement and sustain if the
largest land-owner in the city [the municipal government] is indifferent.”). However, some commentators
assert that the state should play a key role in food policy. See, e.g., Smita Narula, Reclaiming the Right to
Food as a Normative Response to the Global Food Crisis, 13 YALE HUMAN RIGHTS & DEVELOPMENT L.J.
403, 407 (finding that “states occupy a central and critical role in ensuring the right to food”); Salkin &
Lavine, supra note 9, at 599 (quoting KIMBERLY HODGSON, ET AL., AM. PLANNING ASS’N, PLANNING
ADVISORY SERVICE NO. 563, URBAN AGRICULTURE: GROWING HEALTHY, SUSTAINABLE PLACES 12
(2011)) (“[M]eaningful change in regional food system policies is likely to start with state and local
governments [because] community based food systems have the potential to ‘simultaneously address issues
of food security, public health, social justice, and ecological health in local communities and regions . . .
.’”).
123
Supra notes 89, 90 and accompanying text.
124
Composting, ACE HARDWARE, http://www.acehardware.com/info/index.jsp?categoryId=1283900 (last
visited Feb. 9, 2012) (“Some people have concerns about compost heaps fearing they will attract insects,
rodents and other pests as well as produce undesirable odors. Most of these worries are unfounded,
especially with a properly maintained pile.”).
27
would suffer as a result of the locavores’ chickens, including potential health concerns
and loud noise.125 Many chicken ordinances allow a limited number of hens within city
limits, but ban even a single rooster due to the noise they create at sunrise each
morning.126 Localities may also ban roosters because they can be used in cockfighting,
which is illegal in every state, yet is still a problem faced by local law enforcement
officers.127
Even bans on female chickens are often founded in nuisance reasoning, as
chickens can attract pests and predators, and may smell if they are not cleaned up after
regularly.128 Courts that have considered chicken bans that are founded on harm
prevention, noxious use, or nuisance rationales have found those bans to be
constitutional, as not interfering with any fundamental rights.129
There are also some legitimate environmental and health concerns associated with
urban agriculture. If a city does not ban fertilizers or insecticides, those products can
125
Orbach & Sjoberg, supra note 24 (discussing externalities surrounding backyard chicken debates).
See MARY WOOD ET AL., supra note 12, at 45 (discussing noise-based rooster bans). However, at least
one court found that the morning crowing of a rooster was “a symbol of ‘good cheer and happiness.’”
Salkin, Feeding the Locavores, supra note 62, at 4 (quoting Myer v. Minard, 21 So.2d 72, 72 (La. Ct. App.
2d. Cir. 1945)).
127
See, e.g., Cockfighting Raid Results in 145 Arrests, WRAL, Jan. 22, 2007,
http://www.wral.com/news/local/story/1175339/; Alexis Shaw, Drug Raid Leads to Cockfighting Ring
Discovery, NBC LOS ANGELES, Oct. 14, 2011, http://www.nbclosangeles.com/news/local/Drug-RaidLeads-to-Cockfighting--131816783.html; Howard Portnoy, Leader of FL cockfighting ring pleads guilty;
faces jail time, EXAMINER, Oct. 21, 2011, http://www.examiner.com/pet-news-in-national/leader-of-flcockfighting-ring-pleads-guilty-faces-jail-time.
128
See, e.g., HOMEWOOD, ALA. CODE OF ORDINANCES § 4-8 (2011) (“It shall be unlawful for any person to
keep, harbor, or possess any chicken, . . . except . . . [u]nder circumstances where no noise, odor, or
pollution violation or nuisance is occasioned thereby.”) (cited by Salkin, Feeding the Locavores, supra note
62, at 4.
129
See, e.g., City of St. Paul v. Nelson, 404 N.W.2d 890, 891-92 (Minn. Ct. App. 1987) (upholding
constitutionality of ordinance prohibiting keeping of chickens that cause a nuisance, and finding that
“numerous complaints of a rooster’s frequent crowing at inconvenient hours demonstrate a nuisance.”);
Phillips v. Town of Oak Grove, 968 S.W.2d 600, 608 (Ark. 1998) (holding that the “town of Oak Grove
acted within its lawful discretion in prohibiting the keeping of swine or fowl for commercial purposes
within the town limits”); cf. City of Springdale v. Chandler, 257 S.W.2d 934, 935 (Ark. 1953) (“It might be
arbitrary to prevent the keeping of a few hens at a place where it would not be arbitrary or unjust to prevent
the keeping of thousands of chickens.”).
126
28
make their way into the local water supply.130 Similarly, if not properly disposed of,
animal waste can also be a source of water pollution, and can result in E-coli in municipal
water supplies.131 In some urban areas, the soil is contaminated with lead or other
substances that would make it an unhealthy base in which to plant edible foods.132
Finally, sometimes maintenance and safety justify bans, especially of fruit-bearing trees
that overhang public ways. The concern is that the nuts or fruit will fall, the ground will
become slippery and dirty, causing accidents, and pests will be attracted to the smell.133
130
William K. Reilly, The Future of Environmental Law, 6 YALE J. ON REG. 351, 353 (1989) (“There are
literally millions of small, decentralized sources of pollution along the coast itself and millions more
located well inland. Lawn fertilizers and backyard garden insecticides used in Brattleboro, Vermont end up
contributing pollution to Long Island Sound.”). Pesticide loading in residential areas is often higher per
acre than loading from agricultural areas. Jim Criswell, et al., Pesticides in Residential Areas—Protecting
the Environment, OKLA. STATE UNIV. DIV. OF AGRIC. SCI. & NATURAL RES., 1,
http://pods.dasnr.okstate.edu/docushare/dsweb/Get/Document-2341/EPP-7461web.pdf (“In residential
areas, chemicals are applied to smaller areas, but applications may be heavier and more frequent [than in
agricultural areas].”).
131
John E. Mogk, et al., Promoting Urban Agriculture as an Alternative Land Use for Vacant Properties in
the City of Detroit: Benefits, Problems and Proposals for a Regulatory Framework for Successful Land
Use Integration, 56 WAYNE L. REV. 1521, 1538 (2010) (“[U]ntreated manure can be carried away by
rainwater into feedlots, pastures and water sources for human or animal consumption.”).
132
For example, in Portland, Maine, industrial uses, gasoline, and lead paint resulted in lead filtering into
much of the soil in the downtown residential area, requiring those who wish to plant edible foods to use
raised beds. John Richardson, Dirt alert: Test for lead, vegetable gardeners, PORTLAND PRESS HERALD,
Mar. 12, 2010, http://www.pressherald.com/archive/dirt-alert-test-for-lead-vegetable-gardeners_2009-0313.html. Other urban areas are built on the sites of former industrial plants and struggle with lead
contamination. Mogk, et al., supra note 131, at 1535-1538 (areas of Detroit, New York, Baltimore, Boston,
Chicago, Los Angeles, Minneapolis and Philadelphia have high levels of lead due to former industrial
uses).
133
“[M[any municipalities have . . . bans on planting of fruit and nut trees on public streets, and sometimes
local zoning prohibits small agricultural practices downtown. However, the justifications of maintenance
and aesthetics for not allowing food-bearing plants in public spaces may be misconceptions . . . .” Jason J.
Czarnezki, Food, Law & the Environment: Informational and Structural Changes for a Sustainable Food
System, 31 UTAH ENVTL. L. REV. 263, 274 (2011). Despite its extensive urban agriculture planning, Seattle
bans fruit trees in the public right of way. Growing Food in Planting Strips, SEATTLE PUBLIC UTILITIES,
http://www.seattle.gov/util/Services/Yard/Natural_Lawn__Garden_Care/GrowingFoodintheCity/PlantingSt
rips/ (last visited Jan. 18, 2012).
29
c. Aesthetic, Economic, and Exclusionary Justifications
Some urban agriculture bans are in place for aesthetic reasons.134 Indeed,
localities can regulate to prohibit vegetable gardens and chickens on purely aesthetic
grounds, as aesthetics fall within a municipality’s police power.135 Many communities
and residents prefer multiple, uniform, neat front yards to overgrown, messy vegetable
gardens and chicken coops, and feel that gardens and chickens are out of place in their
upper- or upper-middle-class communities.136
Beyond pure aesthetics, studies suggest that the appearance of homes in a
neighborhood impacts property values in that neighborhood.137 Thus, though the bans
might be couched in aesthetics,138 perhaps the underlying reason for excluding gardens
and chickens is that communities do not want their property values negatively
134
Kate A. Voigt, Note, Pigs in the Backyard or the Barnyard: Removing Zoning Impediments to Urban
Agriculture, 38 B.C. ENVTL. AFF. L. REV. 537, 565 (2011) (aesthetics are one reason for opposition to
urban agriculture); NORDAHL, supra note 16, at 91 (“[t]he biggest objections to planting food-bearing
plants in public spaces have always been, and will likely continue to be, maintenance and aesthetics.”); But
see Mogk, et al., supra note 131, at 1567 (urban agriculture can enhance aesthetics in blighted cities);
Alexandra Dapolito Dunn, Siting Green Infrastructure: Legal And Policy Solutions To Alleviate Urban
Poverty And Promote Healthy Communities, 37 B.C. ENVTL. AFF. L. REV. 41, 47 (2010) (“Green
infrastructure also benefits the urban poor by enhancing the aesthetic appeal of communities with trees and
vegetation.”).
135
Berman v. Parker, 348 U.S. 26, 33 (1954) (“The values [public welfare] represents are spiritual as well
as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the
community should be beautiful as well as healthy, spacious as well as clean . . . .”).
136
Supra notes 37 - 41 and accompanying text. See Byrne, supra note 37, at 42-46, passim; see also Tekle,
supra note 37, at 214 (describing the “idyllic” lawn).
137
See, e.g., Susan D. Greenbaum, Housing Abandonment in Inner-City Black Neighborhoods: A Case
Study of the Effects of the Dual Housing Market, in THE CULTURAL MEANING OF URBAN SPACE 139, 140
(Robert Rotenberg & Gary McDonogh eds., 1993) (noting that vacant properties lower the value of nearby
homes, even if those homes are in good condition); Vicki Been & Ioan Voicu, The Effect of Community
Gardens on Neighboring Property Values, 36 REAL EST. ECON. 241, 243 (2008) (noting that community
gardens positively impact the sales prices of nearby properties and that “gardens have the greatest impact in
the most disadvantaged neighborhoods”).
138
If these bans were not in place, aesthetics could not be the sole basis of lawsuits by neighbors seeking
removal of front yard gardens or chickens; the “aesthetic nuisance doctrine” protects people from suing for
a nuisance on purely aesthetic grounds. Smith, supra note 40, at 215 (“[T]here are certain activities that are
privileged and not subject to nuisance balancing. One such range of activities is embraced by the doctrine
of aesthetic nuisance. . . . [T]he actor has immunity if an aesthetically offended observer brings an action
for nuisance.”).
30
impacted.139 Professor William Fischel’s “homevoter hypothesis” supports this
contention; he suggests that homeowners make self-interested decisions about local
politics and regulation, the goal of which is to preserve one’s home’s value.140 Zoning
ordinances are thus often used as exclusionary devices.141 Exclusion is typically
demonstrated through large-lot zoning—for example, an ordinance might require lots to
be at least one acre and house only a single-family home—which effectively closes the
market to those who cannot afford a large parcel of land, or the cost to heat a large house.
However, exclusionary justifications might also exist for urban agriculture bans.142
Although it is now fashionable in some circles to keep chickens in the backyard or plant a
large vegetable garden in the front, these practices were historically identified with lowincome families and recent immigrants.143 These were perhaps also the people who
needed to grow their own food for subsistence, as they were unable to afford to purchase
it, unlike their wealthier counterparts who shopped at the grocery store. Thus, by banning
chickens, or the growing of produce, in residential areas, the local legislatures and their
constituents could ensure that the types of people who would need to engage in those
behaviors would be kept out. At the same time, this also would have the benefit of
preserving property values and maintaining a neat, uniform aesthetic.
139
See, e.g, Salkin, Feeding the Locavores, supra note 62, at 1 (“People who criticize efforts to allow
chickens in neighborhoods worry that property values will plummet, that chickens will create foul odors
and noise, and that they will attract coyotes, foxes, and other pests.”).
140
WILLIAM A. FISCHEL, THE HOMEVOTER HYPOTHESIS 4-5 (2001) reprinted in ELLICKSON & BEEN, supra
note 20, at 46-7 [hereinafter FISCHEL, HOMEVOTER].
141
ELLICKSON & BEEN, supra note 20, at 768-71.
142
See, e.g., STUART BANNER, AMERICAN PROPERTY: A HISTORY OF HOW, WHY, AND WHAT WE OWN 190
(2011) (“[f]rom the beginning, zoning was as much about excluding undesirable people as about excluding
undesirable uses of land”); Elizabeth Ryan, Signal Mountain suburbanite lobbies council for right to raise
chickens, TIMES FRESS PRESS, Jan 10, 2009, http://timesfreepress.com/news/2009/jan/10/signal-mountainsuburbanite-lobbies-council-right-/ (city council revised zoning code pursuant to complaints that “Hispanic
immigrants [were] keeping chickens, rabbits and other animals in their backyards”).
143
See GILDA L. OCHOA, BECOMING NEIGHBORS IN A MEXICAN AMERICAN COMMUNITY: POWER,
CONFLICT, AND SOLIDARITY 114 (2004).
31
d. Inertia and Neighbor Complaints
Political inertia is one of the least justifiable explanations for bans on urban
agriculture, but also one of the easiest to explain. Because many of these bans date back
decades,144 few residents have even considered the possibility of an urban or suburban
landscape featuring farm animals and produce. Further, inertia is evident in the low
enforcement priority that these violations receive. In many instances, although code
enforcement officers have the authority to issue citations, they rarely do so unless there is
a complaint from a neighbor.145 Local newspaper articles are rife with examples of this
very situation.146 For example, a Delaware woman who had chickens for over three years
and regularly shared their eggs with her neighbors only learned of the illegality when a
neighbor reported her rooster’s loud crowing.147 Similarly, in Sacramento, a woman was
cited when a neighbor reported her to code enforcement for planting tomatoes and a fruit
tree on her front lawn.148
There are two ways to interpret this anecdotal data. The first is that code
enforcement officers, though concerned about violations, are too busy to patrol
neighborhoods.149 Therefore, they rely on neighbors to enforce the provisions for them.
144
See, e.g., ARKADELPHIA, ARK., MUNICIPAL CODE § 4-4 (1949) (“[i]t shall be unlawful for any person to
keep or to allow to run at large within the city any chickens, ducks, geese, turkeys, or any other kind of
domestic fowl . . . .”); DENVER, CO., CITY CODE §§ 9-91-93 (1950) (backyard chickens prohibited without
a permit); FRANKLINTON, LA., ORD. No. 626 (1970) (it is “unlawful for any person to keep any cattle,
horses, mules, hogs, sheep, goats or other livestock” in town).
145
See generally Gary S. Becker, Crime and Punishment: An Economic Approach, 76 J. POL. ECON. 169,
169, 186, 207 (1968) (theorizing that the amount of damage caused by the offense “determines the amount
and type of resources and punishment used to enforce a piece of legislation.” Offenses that “do more
damage” are more likely to be discovered and punished.).
146
A Google search for “neighbors cry fowl” brings up numerous articles describing neighbors
complaining about chickens, ducks, and even peacocks in their neighborhoods.
147
Basiouny, supra note 2.
148
City authorities “then notified Baumann that she would have to pull up the plants or face a $750 fine.”
Cary, supra note 41.
149
See MARY WOOD ET AL., supra note 12, at 4 (describing this approach as “a ‘living code,’ a complaint-
driven system”).
32
The other interpretation is that code enforcement officers, and city officials generally,
have other priorities, but because the bans exist, they must react in response to a valid
complaint. This second approach suggests that the laws are outdated, and are ripe for
revision.150 Both of these interpretations are different from the concept of desuetude in
criminal law, which suggests that if a law has not been enforced for a long enough period
of time, it no longer has any effect.151 Here, the laws are still being enforced, but typically
only when their violation is expressly brought to the attention of the code compliance
division by a disgruntled neighbor. This raises a problem: if a person lives in a
community that bans chickens or front yard gardens, but it is known that those ordinances
are not enforced, and most people who have chickens or gardens have never had a
problem, there is little incentive to change those ordinances.152 This is another likely
reason that these bans still exist in many places.153
IV.
Justifications for Removal of Proscriptive Urban Agriculture Bans
and Replacement with Prescriptive or Permissive Urban Agriculture
Policies
There is validity behind some of the reasons that municipalities have instituted,
and have kept in place, bans on urban agriculture and urban homesteading. However,
those bans are grounded in an insufficiently nuanced view of the range of modern
150
See MARY WOOD ET AL., supra note 12, at 51 (observing that “[i]t is widely known that many people
keeping chickens in Eugene [Oregon] are in violation of the limits, indicating a regulatory change is
necessary”); Mukherji & Morales, supra note 17, at 2 (“Frequently, these policy barriers are
unintentional.”).
151
BLACK’S LAW DICTIONARY 513 (9th Ed.); Richard E. Myers, Responding to the Time-based Failures of
the Criminal Law through a Criminal Sunset Amendment, 49 B.C. L. REV. 1327, 1347 (2008) (“[T]he
current widespread disobedience of a statute does not make it desuetudinal. Instead, a longstanding
government policy of non-enforcement drives desuetude.”).
152
See Andrew E. Taslitz, Exclusion and Other Remedies: Fourth Amendment Federalism and the
Silencing of the American Poor, 85 CHI.-KENT L. REV. 277, 311 (2010).
153
Some municipalities also likely keep bans in place because they fear that expressly allowing urban
agriculture is passing a new law to appeal to small group of people who want to undertake a specific
activity, which sets a bad precedent and might open the floodgates to similar requests. See Basiouny, supra
note 2 (noting city council concern about setting a precedent for exceptions).
33
agricultural practices and an outdated set of property and land use law theories. Further,
the values that undergirded those restrictive ordinances are beginning to change as
communities look to the future and enact policies for sustainable development.
On judicial review, revisions to a zoning ordinance are often viewed as legislative
actions taken by the local elected legislative body,154 and will be upheld if they are “fairly
debatable.”155 If they are unreasonable, or arbitrary and capricious, the court will
substitute its judgment for that of the local officials.156 This section provides justifications
showing that any decision to allow permissive urban agricultural ordinances would have
substantial support, and thus would be upheld under this standard.157
First, by removing bans and adopting policies that support urban agricultural
practices, municipalities are acting in furtherance of their police powers, and in the
interest of the health, safety, and welfare of their citizens. Second, allowing urban
agriculture can foster ideals of civic virtue and democratic self-governance. And finally,
in deciding to support urban homesteading within municipal boundaries, localities should
find support in and be bolstered by the law and economics and property rights literature,
which suggests that allowing free and open use of an individual’s private property
154
Fasano v. Board of County Comm’rs, 507 P.2d 23, 26 (1973) (“Ordinances laying down general policies
without regard to a specific piece of property are usually an exercise of legislative authority, are subject to
limited review, and may only be attacked upon constitutional grounds for an arbitrary abuse of authority.
On the other hand, a determination whether the permissible use of a specific piece of property should be
changed is usually an exercise of judicial authority . . .).
155
Village of Euclid, 272 U.S. 365; Ferris v. City of Alhambra, 189 Cal. App. 2d 517, 524-5 (Dist. Ct. App.
1961) (“[i]f the matter is debatable, if reasonable minds may differ upon the question of whether the zoning
is required by or consistent with the public welfare, the courts may not interfere.”).
156
Fasano, 507 P.2d at 26.
157
It is important to understand a locality’s legal basis for its actions; for example, localities that currently
have no urban agricultural ordinances on the books but wish to expressly allow these practices would need
authority to do so, and that authority could be found in their police powers. Supra notes 114 - 122 and
accompanying text. However, localities that currently ban agriculture in residential areas may make those
regulations less intrusive; authority is not necessary for this sort of deregulation.
34
promotes more efficient use of that property. This is especially true when the property is
being used to produce food that may then be sold back into the local economy.
a. Urban Agriculture as a Local Government’s Tool to Further
Public Health, Safety and Welfare While Combating Industrial
Agriculture’s Harms
Traditionally, municipalities enacted urban agriculture bans in furtherance of
public health and welfare.158 However, conceptions of harm are beginning to change;
now, modern views of health and welfare allow homeowners and renters to use their
property for some agricultural purposes.159 As will be discussed in the following
subsection, food that is grown at home is typically healthier than food produced by the
industrial agricultural system.160 Further, allowing urban homesteading also supports the
general welfare because a local economy’s health is tied to its food system.161
By allowing residents to use their private property to produce a portion of their
food, and to sell their surplus locally, local governments can incrementally reduce
reliance on industrially-produced food and in the aggregate avoid related harms.162 Harms
that result from industrial agricultural processes can roughly be divided into two groups:
those that impact public health, and those that impact the health of the environment.
158
Supra Part III(b).
Just as municipalities “provide clean drinking water, [and] protection from crime and catastrophe,” they
should also be taking steps to ensure that their residents are able to use their property for urban farming.
NORDAHL, supra note 16, at 89.
160
Casey Adams, Why Locally-Grown Food is Healthier, YAHOO! VOICES, Mar. 31, 2010,
http://voices.yahoo.com/why-locally-grown-food-healthier-5743172.html.
161
Pothukuchi & Kaufman, supra note 26, at 214.
162
See, e.g., supra note 16 and accompanying text (noting that “victory gardens” accounted for up to 40
percent of domestically consumed produce during World War II).
159
35
i. Public Health
Pursuant to its police powers, a municipality has the right, and some might argue
a duty, to act in the interest of the public health.163 Further, municipalities are already
intimately involved in a number of food policy issues, including “nutrition education,
food stamps, WIC, food health and safety regulation, and school breakfast and lunch
programs.”164 Thus, it is logical that local governments should get involved in the
emerging local foods trend, and adopt local policies and regulations to ensure that their
residents are able to use their property for urban homesteading purposes without fear of
fines or prosecution. Although such policies would leave urban agriculture as a purely
voluntary endeavor, it would have a positive impact on local public health for a number
of reasons.
1. Food Insecurity
The industrial agricultural system contributes to food insecurity165 in this country,
which will likely become a greater problem as the world’s population increases, and as
oil reserves continue to be depleted. This problem could be alleviated if more households
grew their own produce or raised chickens for eggs. Thus, local governments should do
163
See, e.g., Phillips v. Town of Oak Grove, 968 S.W.2d 600, 603 (Ark. 1998) (recognizing “the city’s
plenary duty to exercise its police power in the interest of the public health and safety of its inhabitants.”);
But Cf. James G. Hodge, Jr., An Enhanced Approach to Distinguishing Public Health Practice and Human
Subjects Research, 33 J.L. MED. & ETHICS 125, 130 (2005) (noting that “the federal and most state
constitutions do not create any affirmative duty for government to act in the interests of communal
health”); DeShaney v. Winnebago County Dep't of Soc. Serv., 489 U.S. 189, 195-96 (1989) (“(N)othing in
the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of
its citizens against invasion by private actors.”); Joan Comparet-Cassani, Balancing the Anonymity of
Threatened Witnesses Versus A Defendant's Right of Confrontation: The Waiver Doctrine After Alvarado,
39 SAN DIEGO L. REV. 1165, 1234 (2002) (“Under its parens patriae powers, [government] also has a duty
to care for its citizens.”).
164
Pothukuchi & Kaufman, supra note 26, at 218.
165
Food insecure individuals are those “who do not have ‘nutritionally adequate’ and ‘safe food’ available
to them and individuals who do not have the ability to acquire these acceptable foods.” Christina Fox,
Teach A Man: Proactively Battling Food Insecurity by Increasing Access to Local Foods, 4 J. FOOD L. &
POL’Y 243, 245 (2008).
36
what they can to ensure that their citizens have the ability to access or grow enough food
to feed their families.166
The industrial agricultural food production system on which most Americans
rely167 is intimately tied to, and unable to be separated from, oil.168 Petroleum is used to
produce and apply fertilizer, to operate farm equipment, and of course, to move food
from farm to plate,169 as most food sold in the United States is not grown in the
community where it is consumed.170 It may be imported from abroad, or from across the
country, but it relies on transportation, which relies on oil.171 The most often cited studies
demonstrate that most fresh food and produce travels anywhere from 130 to 2000 miles
before it is eaten; the most common figure cited is 1500 miles.172 Because of the dramatic
increase in the price of petroleum, overreliance on oil is dangerous. As the price of oil
166
Food insecurity, like hunger, is a public health problem, and thus is within the purview of the locality’s
police powers. See, e.g., Mariana Chilton & Jenny Rabinowich, Ending Childhood Hunger in America, 37
A.B.A. J. HUM. RTS. 14 (Winter 2010) (“food insecurity . . . is also a serious public health problem. Food
insecurity among children is associated with fair and poor child health, with high hospitalization rates, and
with truncated social, emotional, and cognitive development. . . . among teenagers, it is associated with
suicidal ideation and depression.”).
167
“[N]inety-eight percent of the food supply in the United States is produced by agribusinesses running
industrial farms that employ mechanically and chemically intensive farming methods for the maximization
of profit.” Peters, supra note 22, at 207 (citing Jodi Soyars Windham, Putting Your Money Where Your
Mouth Is: Perverse Food Subsidies, Social Responsibility & America's 2007 Farm Bill, 31 ENVIRONS
ENVTL L & POL’Y J. 1, 4 (2007)).
168
NORDAHL, supra note 16, at xiii (“Until communities figure out how to provide for themselves, instead
of relying on a handful of petrophilic agribusinesses in remote locations in our country and abroad, our
satiety will be tenuous.”).
169
Peters, supra note 22, at 230 (contrasting local, sustainably grown agriculture, which is not similarly
dependent upon oil).
170
“Virtually all communities in the United States depend heavily upon imported food, produced far away
in climates and soils non-native to the particular locality.” Mary Wood, et al., supra note 3, at 70 (citing
THOMAS A. LYSON, CIVIC AGRICULTURE: RECONNECTING FARM, FOOD AND COMMUNITY 4 (2004)).
171
Because of our industrial agricultural system, we produce a large amount of certain crops, but small
amounts of others, which leads us to import those crops from other countries. See William S. Eubanks II, A
Rotten System, 28 STAN. ENVTL. L.J. 213, 237 (2009).
172
Mary Wood, et al., supra note 3, at 71 (citing NATIONAL SUSTAINABILITY AGRICULTURE INFORMATION
SERVICE, FOOD MILES: BACKGROUND AND MARKETING (2010)); MICHAEL POLLAN, THE OMNIVORE’S
DILEMMA: A NATURAL HISTORY OF FOUR MEALS 137 (2006); But see Jane Black, What’s In a Number:
How the press got the idea that food travels 1,500 miles from farm to plate, SLATE, Sept. 17, 2008,
http://www.slate.com/articles/life/food/2008/09/whats_in_a_number.html (arguing that food miles traveled
may be more or less than 1,500 miles depending on the food and the location within the U.S.).
37
rises, the price of food may also rise, which would lessen the ability of poorer Americans
to purchase what they need.173
Further, as the population rises, there will be an increasing demand for food
production, which may lead to more intensive farming methods and increased use of
genetically modified crops to produce larger products in shorter amounts of time.174
Support for urban homesteading can address some of this increased demand, as it has
previously in this country. Historically, food was not produced in cities.175 However, this
changed during World War I, the Great Depression, and World War II, when “victory
gardens” became a common feature of urban and suburban residences.176 Viewed as an
act of patriotism so that food could be freed up for shipment overseas, over 20 million
individuals grew produce.177
The existence of those gardens served as an important food security tool178
because farms in rural areas were not producing enough food to supply domestic homes
and also ship food abroad.179 To ensure success, the government instituted an education
and information campaign180 providing information about planting techniques and
173
Supra note 168.
The harms that result from industrial agriculture processes such as this are discussed infra, Part IV(a)(ii).
175
Pothukuchi & Kaufman, supra note 26, at 215. (“‘A city is a human settlement whose inhabitants cannot
produce, within the city limits, all of the food that they need for keeping them alive’ []. ‘Urban’ thus came
to be defined in early twentieth century texts as non-agricultural, thereby conceptually distancing food as
an urban issue.”) (citing ARNOLD J. TOYNBEE, CITIES ON THE MOVE, 8 (1970)).
176
Mukherji & Morales, supra note 17, at 2.
177
Greening Food Deserts, H.R. 4971, 111th Congress, § 2(a)(20) (2010); BENTLEY, supra note 16, at 117;
NORDAHL, supra note 16, at 136.
178
Mukherji & Morales, supra note 17, at 2.
179
NORDAHL, supra note 16, at 17 (“The agriculture and gardening efforts during [] periods of crisis were
initiated to help secure our food supply, and the government looked to urban means of food production to
supplement the rural farms that were unable to keep up with domestic demand.”).
180
Endres & Endres, supra note 121, at 417 (describing a “massive public information campaign that
appealed to American patriotism to ‘put all idle land to work’ . . . [and] programs that educated Americans
how to grow and process food.”); see also NORDAHL, supra note 16, at 118. The program was coordinated
between federal, state, and local entities. See Victory Gardens to Bloom in the U.S., N.Y. TIMES, Jan. 12,
1942, at 19.
174
38
nutrition, while state universities provided radio broadcasts discussing how to garden.181
Therefore, urban agriculture is “a return to the past American tradition,”182 and should
not be viewed as implausible or unexpected.
Local governments can look to the success of victory gardens during those former
times of food insecurity, and apply similar educational techniques to urban farming
today.183 In communities that allow urban agriculture, an individual only needs a small
plot of land and a small amount of money to set up a garden, or purchase or construct a
suitable chicken coop.184 Seeds and seedlings can often be obtained from neighbors, and
chickens can be adopted from shelters. After that, access to food is readily available, thus
alleviating some insecurity.185
2. Food Deserts
181
NORDAHL, supra note 16, at 118; Endres & Endres, supra note 121, at 418, n. 124 (“[T]he University of
Illinois [] Extension Service provided a weekly seasonal broadcast on victory gardening”). Similar
educational techniques could be used today if localities decided to encourage urban agriculture.
182
MARY WOOD ET AL., supra note 12, at 19 (noting that during WWII, the “government appealed to
homeowners nationally to raise their own chickens for food security”). There were, however, food rations
at that time for foods that were in short supply. Endres & Endres, supra note 121, at 415-6. Further, it is
unknown whether high levels of productivity would be sustained outside of wartime.
183
Others have suggested that local governments have a role to play in supporting urban agriculture as a
means of food security. See, e.g., Peters, supra note 22, at 205 (“In the face of environmental, economic,
and social equity challenges, it is imperative that the government . . . establish policies that promote
sustainable urban agriculture to ensure access to an adequate food supply produced with minimal impact on
the environment.”).
184
One problem is that many of the most food-insecure in the U.S. do not own their own homes; perhaps
they rent or live in public housing. Thus, their ability to use their land for urban agricultural purposes might
be limited by rental agreements. Further, if they live in high-density, inner-city housing, there is often little
to no outdoor space on which to conduct many of these activities. However, there have been tales of
individuals growing vegetables in window boxes and keeping chickens inside apartments. See, e.g., Clare
Trapasso, Chickens born and bred in one-bedroom apartment as part of couple’s local food routine, MY
DAILY NEWS, Oct. 2, 2011, http://articles.nydailynews.com/2011-10-02/local/30247953_1_chickenkeeping-local-food-eggs. Further, though it is beyond the scope of this Article, community gardens can
serve some goals for individuals who lack the space or funds to start their own urban agricultural endeavor.
See, e.g., Garden Program, NEW YORK CITY HOUSING AUTHORITY,
http://www.nyc.gov/html/nycha/html/community/garden.shtml (last visited Feb. 11, 2012).
185
Of course, in certain climates, little can be grown during the winter months, and egg production in older
hens may slow down.
39
Closely tied to the problem of food insecurity is that of food deserts.186 Industrial
agriculture combined with restrictive zoning results in a highly concentrated system of
food production that is geographically removed from urban areas. Before zoning, a
person could walk down the street to a farm stand or neighborhood produce market. This
is no longer true in many urban and suburban neighborhoods,187 and even in some rural
areas.188 Thus, even if an individual has the money or desire to purchase whole, healthy
foods, she may not have access to those items. Many areas lack farmers’ markets,
produce stands, and even grocery stores.189 Instead, people in these communities buy
their food at fast food restaurants, convenience stores and gas stations. And even if there
is a grocery store in a low-income area, research shows that it likely has a smaller and
poorer quality selection of produce than a similar store in a wealthier neighborhood.190
There is a role for governments to play in alleviating the problem of food deserts,
and some states have been investing in programs to do so. For example, a Philadelphia
non-profit has used state funding to create stores in underserved communities that can
186
Sarah B. Schindler, The Future of Abandoned Big Box Stores: Legal Solutions to the Legacies of Poor
Planning Decisions, 83 COLO. L. REV. (forthcoming 2012) (discussing food deserts); Avi Brisman, Food
Justice as Crime Prevention, 5 J. FOOD L. & POL’Y 1, 8-11 (2009).
187
Michael Correll, Getting Fat on Government Cheese: The Connection Between Social Welfare
Participation, Gender, and Obesity in America, 18 DUKE J. GENDER L. & POL'Y 45, 59-60 (2010).
188
Salkin & Lavine, supra note 9, at 609; Avi Brisman, It Takes Green To Be Green: Environmental
Elitism, “Ritual Displays,” And Conspicuous Non-Consumption, 85 N. DAK. L. REV. 329, 360 n. 207
(2009).
189
See generally Correll, supra note 187; Susan A. Schneider, A Reconsideration of Agricultural Law: A
Call for the Law of Food, Farming, and Sustainability, 34 WM. & MARY ENVTL. L. & POL’Y REV. 935
(2010). See also Your Food Environment Atlas, U.S. DEP’T AGRIC.,
http://maps.ers.usda.gov/FoodAtlas/foodenv5.aspx (last visited Feb. 11, 2012).
190
Dunn, supra note 134, at 52-53 (citing Mark Vallianatos et al., Transportation and Food: The
Importance of Access, URBAN & ENVTL. POL’Y INST. 2 (2002), http://
departments.oxy.edu/uepi/cfj/publications/transportation_and_food.pdf); see also Moving To Opportunity
for Fair Housing Demonstration Program: Final Impacts Evaluation, U.S. DEP’T HOUS. & URBAN DEV.
XII (Oct. 14, 2011), http://www.huduser.org/publications/pdf/MTOFHD_fullreport.pdf (moving from a
low- to a higher-income community decreases risk of diabetes and obesity).
40
provide low cost, healthy food.191 Municipalities have also been attempting a variety of
techniques to eliminate food deserts, including support for community gardens.192 A
locality’s support for and promotion of voluntary urban homesteading is another way to
alleviate the food desert problem.193 Because of existing ordinances, many people who
live in food deserts are unable to grow their own food in quantities sufficient to feed their
families. A locality adopting a policy promoting urban agriculture could include an
educational component to aid low-income families in planting and harvesting an urban
garden, or to teach school-age children about urban gardening. If these individuals are
able to grow their own food, they can save money that would otherwise be spent buying
processed foods from a convenience store, and gain the added bonus of contributing to a
healthier diet.194 Further, if they produce more than they can consume, they can sell the
191
MARK WINNE, CLOSING THE FOOD GAP: RESETTING THE TABLE IN THE LAND OF PLENTY 187 (2008)
(noting that these stores “will [] pay off in new property taxes and jobs for those communities”).
192
See, e.g., Salkin & Lavine, supra note 9, at 613 (Chicago “set[] a goal of eliminating food deserts by
2040 . . . [by] support[ing] programs for farmers markets, farm carts and stands, fresh food delivery trucks,
food cooperatives, direct sales from community gardens, and other alternative retail options.”); see also
Cynthia A. Baker, Bottom Lines and Waist Lines: State Governments Weigh in on Wellness, 5 IND. HEALTH
L. REV. 185, 195-6 (2008) (Pennsylvania enacted the Fresh Food Financing Initiative in 2004 to
“encourage[] public and private funding for supermarket development across that state” and New Mexico
created a task force to foster “‘a state-financed revolving loan fund that helps cash strapped store owners in
rural areas purchase produce coolers or even loading docks.’”); Sheila Fleischhacker & Joel Gittelsohn,
Carrots or Candy in Corner Stores?: Federal Facilitators and Barriers to Stocking Healthier Options, 7
IND. HEALTH L. REV. 23, 44-5 (2010) (The “2008 Farm Bill expanded the USDA Fresh Fruit and
Vegetable Snack Program in Schools, which may help reduce participants’ purchases at corner stores after
school.”); Anupama Prasad, et al., Recent Developments in Environmental Law, 24 TUL. ENVTL. L.J. 423,
444 (2011) (Walmart’s Health Food Initiative aims to eradicate food deserts by constructing new stores in
underserved areas).
193
LaCroix, Urban Agriculture, supra note 25, at 236 (“the city’s goals in fostering urban gardens are twofold: gardening is by itself a productive use of land, and [] the city is concerned about inner city ‘food
deserts’”).
194
Brisman, supra note 186, at 42 (arguing that “eliminating food deserts and working towards food justice
has the potential for positive public health outcomes and, in the process, to possibly prevent and reduce
crime”).
41
surplus at a local market or to a neighbor, thus supplementing their income, contributing
to community cohesiveness, and helping to alleviate the food insecurity of others.195
3. Obesity, Processed Foods, and the Role of the State
The industrial food complex has resulted in food insecurity and food deserts, both
of which are partially to blame for a trifecta of major American health problems: obesity,
Type II diabetes, and heart disease.196 Industrial food is often processed, packaged food.
Moreover, because U.S. agriculture policy currently rewards the overproduction of corn,
much excess corn is turned into high fructose corn syrup, which is included in a large
number of processed foods, and has been shown to play a factor in both diabetes and
obesity.197 Many people would rather spend less for more calories. This is why fast
food—high in calories but low in nutrition—is so popular.198 It is often easier, cheaper,
and less time-consuming to buy packaged peanut-butter that is loaded with sugar and oils
than it is to grind fresh peanuts, or to buy a hamburger and fries than to cook a meal that
entails washing, chopping and cooking vegetables and grains.199 It is naïve to believe that
195
Mukherji & Morales, supra note 17, at 2 (“The produce is sold to neighborhood residents who might not
otherwise have access to inexpensive fresh produce.”).
196
Morales & Kettles, supra note 76, at 30 (citing The Burden of Chronic Diseases and Their Risk Factors:
National and State Perspectives, Ctr. Disease Control, at 29 & 44 (2004)) (“[T]wo interrelated factors
dominate the food/health integument: diminished access to healthy food and the rise of industrial food.
Taken together, the two are believed to produce serious health problems, such as obesity and Type II
diabetes.”). See also supra note 190.
197
Mary Jane Angelo, Corn, Carbon, and Conservation: Rethinking U.S. Agricultural Policy in A
Changing Global Environment, 17 GEO. MASON L. REV. 593, 612 (2010); George A. Bray, et al.,
Consumption of High-Fructose Corn Syrup in Beverages May Play a Role in the Epidemic of Obesity, 79
AM. J. CLINICAL NUTRITION 537, 537 (2004).
198
Andrea Jezovit, Cheap Twix: Junk food offers more calories for your cash, GRIST, Aug. 8, 2011,
http://grist.org/food/2011-08-08-cheap-twix-more-calories-for-your-cash-in-the-junk-food-aisle/ (citing
Adam Drewnowski’s research, finding that one “dollar could purchase 1,200 calories of cookies or potato
chips, but only 250 calories of carrots.”).
199
See generally NORDAHL, supra note 16, at 35 (“obesity is the result of food insecurity here in America. .
. . it is the abundance of cheap calories derived from processed and fast food vis-à-vis the inaccessibility of
fresh, wholesome, nutrient-dense foods at an affordable price that is responsible for the poor health of this
nation’s citizens”).
42
local governments will change these habits overnight by adopting a policy that allows
and supports urban agriculture. However, such a policy could provide an alternative
source of healthy food that could combat obesity;200 foods produced in a residential
backyard—vegetables, fruits, and eggs—are healthier than processed foods that are easily
purchased.201
Some municipal governments have begun taking steps to alleviate the obesity
epidemic in their communities. Many of these ordinances focus not on urban agriculture,
but on the regulation of fast food restaurants and their menus. For example, Los Angeles
recently enacted a moratorium on the construction of new fast food restaurants.202 The
stated justifications in support of the moratorium were that the formula retail structures
are designed in a way that does not mesh with the neighborhood character, have too much
signage and parking, and have a negative aesthetic impact.203 The subtext of the
ordinance’s enactment was that fast-food restaurants cause health problems, and healthrelated concerns are a valid exercise of the city’s police power.204 Similarly, after
expressly finding that “the presence of industrially-produced trans fat in foods prepared
200
For example, funding that currently goes to programs, supra note 191, could be redirected toward
teaching people to grown their own food. It is questionable whether pro-urban agriculture policies will
make a difference in the areas where industrial-food-related public health maladies are occurring; are low-
income people in food insecure areas the ones who want urban gardens? Regardless, if they are permitted
to have them, and if energy is invested in educating these communities about the positive health impacts
from urban agriculture, change is possible. Further, some of these bans do exist in neighborhoods with
problems discussed in this section. For example, Novella Carpenter authored a book about “urban
homesteading in an impoverished area of Oakland, California,” and she herself has been the target of
repressive city policies aimed at curbing urban agriculture. MARY WOOD ET AL., supra note 12, at 17 (discussing NOVELLA CARPENTER, FARM CITY: THE EDUCATION OF AN URBAN FARMER (2009)). So,
although these neighborhoods are not necessarily at the forefront of the locavore movement, they could
benefit from policies that support the movement.
201
Michael Pollen, Unhappy Meals, NEW YORK TIMES, Jan. 28, 2007, http://michaelpollan.com/articlesarchive/unhappy-meals/.
202
L.A., Cal., Ordinance 180103 (July 29, 2008).
203
Id.
204
Eloisa C. Rodriguez-Dod, It’s Not a Small World After All: Regulating Obesity Globally, 79 MISS. L.J.
697 (2010) (discussing ordinances that prohibit fast food restaurants); Allyson C. Spacht, Note, The Zoning
Diet: Using Restrictive Zoning to Shrink American Waistlines, 85 NOTRE DAME L. REV. 391 (2009).
43
in food shops poses a threat to the public health,” Cleveland adopted an ordinance that
banned the use of industrially manufactured trans-fat-laden foods in certain shops, and
required labeling and documentation of that information.205
Although local governments have the potential to advance public health through
food policy, they should consider the role that their states play before adopting legislation
in this area. In some states, food policy is very much a state issue,206 and there are
emerging preemption concerns. For example, in New York, a state law pertaining to
multiple dwelling units prohibits the keeping of rabbits, goats or chickens unless a local
government regulation expressly allows it.207 South Carolina passed a law stating that
“[a]ll local laws and ordinances related to the regulation of and the enforcement of the
care and handling of livestock and poultry in this State are preempted and superseded.”208
It appears that such a law might prohibit backyard chicken ordinances that regulated the
size and location of chicken coops, or the treatment of the chickens themselves. In
Georgia, a proposed bill would have preempted local ordinances addressing
agriculture,209 and prohibited the sale of homegrown vegetables or animal products.210
205
Cleveland, Ohio, Ordinance 474-11 (Apr. 25, 2011). This ordinance is threatened by the subsequent
adoption of a state preemption statute. H.B. 153, 129th Gen. Assemb., Reg. Sess. § 3717.53, .54 (Ohio
2011).
206
Of course, the federal farm bill sets food policy at a national level. Food, Conservation, and Energy Act
of 2008, H.R. 6124, 110th Cong. (2008). For a summary of problems with the current subsidized industrial
agriculture system and the Farm Bill, see William S. Eubanks II, The Sustainable Farm Bill: A Proposal
for Permanent Environmental Change, 39 ENVTL. L. REP. NEWS & ANALYSIS 10493 (2009) (“By
encouraging large-scale, monoculture megafarms, a subsidized industrial agricultural system leads to
severe environmental consequences such as water pollution from fertilizer and pesticide runoff, soil
erosion, and effects on wildlife and biodiversity, such as fragmented habitats and species decline.”); Peters,
supra note 22, at 208 (discussing “large, monocultural farms heavily reliant on chemical pesticides and
fertilizers, mechanization, and irrigation”).
207
N.Y. MULT. DWELL. LAW § 12(2).
208
Elizabeth R. Springsteen, A Proposal to Regulate Farm Animal Confinement in the United States and an
Overview of Current and Proposed Laws on the Subject, 14 DRAKE J. AGRIC. L. 437, 457-58 (2009); S.C.
CODE ANN. § 47-4-160 (2009).
209
Notably, the purpose of this bill was to prohibit localities from banning or requiring permits in order to
grow or raise crops, chickens, rabbits or goats on private property, subject to certain lot size restrictions.
H.B. 842, Gen. Assem., Reg. Sess. (Ga. 2010).
44
Municipalities should also be aware that some states have passed new preemption
laws that curb the ability of a municipality to regulate obesity. These laws typically
preclude local regulation of restaurant menus, meal contents, and labeling.211 Thus, a
locality that plans to justify its urban agriculture plan as a form of regulation in
furtherance of public health and food choice should first determine whether its state has
adopted such a law, and if so, how broad it is.212
For example, the Ohio legislature recently passed a law saying that a municipality
cannot require a restaurant to provide health information about its menu items, nor can it
pass local ordinances that address “food-based health disparities.”213 A 2010 Tennessee
state statute prohibits localities from enacting ordinances or rules “pertaining to the
provision of food nutritional information” or regulating menus in any other way.214 In
Arizona, the legislature recently enacted a statute prohibiting localities from regulating
the use of “consumer incentives”—things like toys, games, coupons, or prizes—
associated with a meal, such as those that come with Happy Meals.215 The Arizona law
was enacted in response to ordinances, like that passed in Santa Clara, California, whose
210
Id. On Mar. 11, 2010, the “House Committee [f]avorably [r]eported.” HB 842 – Agriculture; preempt
certain local ordinances; protect right to grow food crops; provisions, GEORGIA GENERAL ASSEMBLY,
http://www1.legis.ga.gov/legis/2009_10/sum/hb842.htm (last visited Feb. 23, 2012).
211
See, e.g., FLA. STAT. § 509.032(7)(a) (“The regulation of public lodging establishments and public food
service establishments, including . . . matters related to the nutritional content and marketing of foods
offered in such establishments, is preempted to the state”); ALA. CODE § 20-1-10(a) (2011) (“The subject
matter of the regulation of nutrition labeling of food that is a menu item in restaurants, retail food
establishments, and vending machines is reserved to the Legislature and may be regulated only by an act of
the Legislature of statewide application enacted after June 9, 2011); GA. CODE ANN. § 26-2-373 (“no
county board of health or political subdivision of this state shall enact any ordinance or issue any rules and
regulations pertaining to the provision of food nutrition information at food service establishments”).
212
If a preemption law does exist, perhaps the best justification for urban agriculture programs is based in
civic virtue or efficiency (discussed infra Part IV(c)).
213
See H.B. 153, 129th Gen. Assemb., Reg. Sess. § 3717.53, .54 (Ohio 2011); Stephanie Strom, Local
Laws Fighting Fat Under Siege, N.Y. TIMES, June 30, 2011,
http://www.nytimes.com/2011/07/01/business/01obese.html.
214
TENN. CODE ANN. § 68-14-303(3) (2010); see also UTAH CODE ANN. § 10-8-44.5(1) (“A municipality
may not regulate the dissemination of nutritional information or the content required to be placed on a
menu, menu board, or food tag by a restaurant, eating establishment, or other food facility.”).
215
ARIZ. REV. STAT. ANN. § 44-1380 (2011).
45
purpose is “to improve the health of children and adolescents in the County by setting
healthy nutritional standards for children’s meals accompanied by toys or other incentive
items.”216
These state-level preemption laws are problematic because they may discourage
cities from adopting wide-ranging urban agriculture policies and regulations. However,
localities would have a strong argument that they should not apply to urban agriculture
ordinances. If an overriding goal of the state statutes is to protect restaurants from having
to comply with a patchwork or “crazy quilt” of local regulations,217 that goal would not
be affected by individuals raising chickens or vegetables in their yards. If such an
argument is unsuccessful, and if states continue to prohibit localities from enacting
regulations that might serve to reduce the obesity epidemic that plagues so many
communities in this country, we run the risk of stifling a possible path to change.
While some commentators have set forth proposals for change at the federal
level,218 federal farm subsidies are deeply entrenched, and thus far no change is
forthcoming (although Congress recently renounced support for ethanol corn
216
SANTA CLARA CNTY., CAL., CODE §§ A18-350 - A18-355 (2011).
Utah may ban regulation of nutritional info, IFT, Feb. 27 2009, http://www.ift.org/FoodTechnology/Daily-News/2009/February/27/Utah-may-ban-regulation-of-nutritional-info.aspx (Senator who
sponsored bill said menu labeling rules “should apply statewide, if at all”). See also Strom, supra note 213
(National Restaurant Association believed it was in “the best interests of the consumer to have one uniform
standard.”); Town of Mt. Pleasant, Racine County v. City of Racine, Racine County, 127 N.W.2d 757, 760
(Wis. 1964).
218
Food, Conservation, and Energy Act of 2008, H.R. 6124, 110th Cong. (2008). See, e.g., Margaret Sova
McCabe, Foodshed Foundations: Law’s Role In Shaping Our Food System’s Future, 22 FORDHAM ENVTL.
L. REV. 563, 575 (2011) (observing that “[e]vidence of federal domination is abundant” and advocating for
implementation of a “regional foodshed compact”); Adam Benforado, et al., Broken Scales: Obesity And
Justice In America, 53 EMORY L.J. 1645, 1793 (2004) (criticizing “[t]he availability of cheap corn [and
how it] has reshaped the entire universe of the food industry, as well as the universe of food in our society,”
particularly with regard to obesity); Sarah Harwood, Note, United States Farm Bill - An Antiquated
Policy?, 88 U. DET. MERCY L. REV. 377 (2010) (discussing harms created by subsidies); Angelo, supra
note 197, at 645-46 (suggesting a “complete rethinking of commodity subsidy programs”).
217
46
subsidies).219 And while state-level policies can guide local governments in their
consideration of urban agriculture policies, they may not be as successful as the policies
put in place by local governments themselves. Real change can happen—and is
happening—at the local level.220
4. Food Safety
It is impossible to talk about industrial food and public health without briefly
mentioning food safety. Although experts debate whether small and/or urban farms really
produce safer food than large industrial agriculture does, the main argument is that the
purchaser knows the farmer, so if there is a problem, it is easily traceable and will not
have national impacts like some of the recent E-coli outbreaks.221 Further, some
pathogens are caused by animal feces that get into water that is then used for crop
irrigation; this is less likely in urban centers and suburbs, which typically contain fewer
animals, and where crops are often watered with potable municipal water.222 Finally,
research has demonstrated that chickens that are raised in stressful environments, such as
those found on factory farms, are more likely to produce eggs containing harmful
219
Congress ends era of ethanol subsidies, NPR, Jan. 3, 2012,
http://www.npr.org/2012/01/03/144605485/congress-ends-era-of-ethanol-subsidies (“Congress let the
formerly sacred subsidies expire after more than 30 years and about $20 billion.”).
220
NORDAHL, supra note 16, at 126 (“Centralized policies, regardless of their reform aims, tend to be of a
one-size-fits-all mold. Such a policy regarding food would likely erase the unique traditions and customs of
our celebrated ethnic diversity expressed through food and cuisine . . . .”).
221
MARY WOOD ET AL., supra note 12, at 9 (“disease outbreaks in locally produced food systems are more
isolated and therefore more contained”); How to Protect Yourself from Food Poisoning, ABC News, July
17, 2011, http://abcnews.go.com/Health/Wellness/protect-foodpoisoning/story?id=14022017#.TznHQsrBwfo (“It’s hard to find the exact source of a food-borne illness
because it typically takes two to three days for the first symptoms of an infection to appear. . . .‘Moreover,
contamination might not be from a specific farm or food, but from a point of distribution.’”).
222
NORDAHL, supra note 16, at 28. Compare What to Do with Urban Chicken Poop?, URBAN CHICKENS,
Feb. 5, 2009, http://www.urbanchickens.net/2009/02/what-to-do-with-urban-chicken-poop.html (discussing
concerns of phosphorous run-off into water supplies from chicken feces) with Benefits of Urban Chickens,
URBAN CHICKENS, http://urbanchickens.org/benefits-urban-chickens (discussing benefits that the high
nitrogen content of chicken feces has on compost).
47
bacteria, such as salmonella.223 Thus, some suggest that backyard chickens are less likely
to produce harmful eggs.224
ii. Environmental Harm
While the public health problems that industrial agriculture visits upon
communities are serious, the environmental harms are just as noxious. And just as many
of the public health problems addressed above can be alleviated through a shift in focus
from national, industrial agriculture to local, urban homesteading, many of the
environmental harms that result from industrial agriculture can be dramatically reduced
through a renewed focus on, and governmental support for, urban agriculture. The city of
San Francisco has recognized this by setting forth a goal of “[r]educ[ing] the
environmental impacts associated with food production, distribution, consumption, and
disposal by increasing our reliance on regional and sustainable food resources.”225 Other
municipalities should follow suit.
1. Food Miles Traveled and Climate Change
A common rallying cry of the locavore movement relates to “food miles
traveled,” or FMT. Processed food typically has to be shipped long distances to reach its
223
An HSUS Report: Food Safety and Cage Egg Production, THE HUMANE SOC’Y OF THE U.S., www.humanesociety.org/assets/.../farm/report_food_safety_eggs.pdf.
224
Id. at 5 (finding “no Salmonella in eggs from either [barren caged birds or cage-free hens] or a trend
towards higher infection rates in eggs from caged hens compared to barn-raised birds”); infra note 253. But
see James McWilliams, Backyard Chickens: A Trend Coming Home to Roost?, FREAKONOMICS, July 27,
2011, http://www.freakonomics.com/2011/07/27/backyard-hens-a-trend-coming-home-to-roost/ (“To the
best of my knowledge . . . nobody has calculated comparative rates of infection between backyard and
industrialized birds.”).
225
The Final Recommendations of the San Francisco Urban-Rural Roundtable, ROOTS OF CHANGE, 8 (May
15, 2009), http://www.sfgov3.org/ftp/uploadedfiles/sffood/policy_reports/
FinalURRRecommendations0709.pdf [hereinafter Final Recommendations].
48
destination.226 Thus, locavores put a great deal of stock in how far food must travel,
typically on oil-burning trucks that drive thousands of miles on asphalt highways, but
more frequently now on ships and planes as well. Some locavores will only eat food
grown within 100 miles of their homes.227 There are a number of reasons for this: the
food will be fresh and can be eaten soon after harvest; it will be in season; and because it
will have traveled only a short distance, it will have a light carbon footprint.
However, some recent studies are refuting the carbon footprint element of the
FMT calculation as too simplistic.228 Specifically, FMT fails to take into account the
energy used in producing the food—the phase in which some argue the most greenhouse
gases are released—and only considers the energy used in transporting it.229 Rather,
perhaps the most efficient use of resources, and the smallest use of energy, is to grow
food where it grows best—for example, do not heat a greenhouse to grow tomatoes in
Maine in the middle of winter—and worry less about transportation costs.230
226
Czarnezki, supra note 133, at 271 (discussing the “the negative environmental impact of food packaging
and shipping”).
227
See, e.g., Burros, supra note 15.
228
See generally JAMES E. MCWILLIAMS, JUST FOOD: WHERE LOCAVORES GET IT WRONG AND HOW WE
CAN TRULY EAT RESPONSIBLY (2010); Christopher L. Weber & H. Scott Matthews, Food-Miles and the
Relative Climate Impacts of Food Choices in the United States, 42 ENVVTL. SCIENCE & TECH. 3508 (2008).
229
See Caroline Saunders et. al., Food Miles – Comparative Energy/Emissions Performance of New
Zealand’s Agriculture Industry, Research Report No. 285, 93 (July 2006),
www.lincoln.ac.nz/documents/2328_rr285_s13389.pdf (calling the FMT calculation “spurious”); Vasile
Stanescu,“Green” Eggs and Ham? The Myth of Sustainable Meat and the Danger of the Local, 3 JOURNAL
FOR CRITICAL ANIMAL STUDIES 9 (2010) (describing the “false pastoral narrative” associated with
locavorism); Weber & Matthews, supra note 228 (cited by Stanescu, supra note 229, at 12-3).
230
See Stephen Budiansky, Math Lessons for Locavores, OP-ED, N.Y. TIMES, Aug. 19, 2010,
http://www.nytimes.com/2010/08/20/opinion/20budiansky.html (“The best way to make the most of these
[] resources of land, favorable climates and human labor is to grow lettuce, oranges, wheat, peppers,
bananas, whatever, in the places where they grow best and with the most efficient technologies—and then
pay the relatively tiny energy cost to get them to market, as we do with every other commodity in the
economy.”) Further, Professor Glaeser’s recent op-ed cautions that urban agriculture could result in lower
density, which actually means more greenhouse gas emissions. Edward L. Glaeser, The Locavore’s
Dilemma: Urban farms do more harm than good to the environment, BOSTON GLOBE, June 16, 2011,
http://articles.boston.com/2011-06-16/bostonglobe/29666344_1_greenhouse-gas-carbon-emissions-localfood (“Urban farms mean less people per acre which in turn means longer drives and more gasoline
49
Even if one were to accept that FMT is a false indicator of environmental health
or greenhouse gas contributions,231 individuals who grow their own produce and harvest
their own eggs still contribute less to climate change than those who purchase those same
products at a grocery store.232 For example, chickens that roam in a backyard consume
bugs, weeds and slugs, reducing “the need for [petro-chemical-based] commercial slug
bait, pesticides, and herbicides,” and the pollution associated therewith.233 Chickens also
consume food scraps, which reduces the amount of food waste thrown away. In contrast,
many processed foods are also packaged foods. This means that the packaging must be
created, which takes energy,234 and once the food is used, the packaging must be disposed
of or recycled, both of which fall on the city.235 So, adopting a policy that promotes urban
agriculture should have an overall positive impact on a community’s carbon footprint.236
2. Monocultures
consumption.”). Because population is increasing and global hunger is a real problem, all these
environmental issues should be considered together.
231
Supra notes 228 - 230.
232
See The Issues: Fossil Fuel and Energy Use, SUSTAINABLE TABLE, http://www.sustainabletable.org/issues/energy/ (last visited Feb. 27, 2012). Further, gas is saved by not
having to drive to the grocery store as frequently. John Reinhardt, Will a Spike in Gas Prices Pique Interest
in Urban Gardens?, SUSTAINABLE CITIES COLLECTIVE, Mar. 29, 2011,
http://sustainablecitiescollective.com/growninthecity/23018/will-spike-gas-prices-pique-interest-urbangardens.
233
MARY WOOD ET AL., supra note 12, at 20.
234
Andrew Martin, If It’s Fresh and Local, Is It Always Greener?, N.Y. TIMES, Dec. 9, 2007,
http://www.nytimes.com/2007/12/09/business/yourmoney/09feed.html (citing research of Tom Tomich,
Director of the University of California Sustainable Agriculture Research and Education Program, and
noting that locavores should also consider how food is packaged, grown, and processed).
235
Mary Wood, et al., supra note 3, at 71.
236
See, e.g., Davis Climate Action & Adaptation Plan, CITY OF DAVIS, http://cityofdavis.org/cdd/sustainability/DCAAP/ClimateActionPlan.cfm (last visited Feb. 13, 2012) (Davis
plan “is designed to place the community on a path to achieve [] greenhouse gas emission reduction
targets”); HowLowCanAVLGo?: Raise the Bar. Lower the Carbon, ASHVILLE NCV, http://www.ashevillenc.gov/Departments/Sustainability.aspx (last visited Feb. 13, 2012) (“City Council
passed a resolution committing to reduce the municipal carbon footprint 80% by the year 2050 and
requiring a strategic plan to lead this effort.”).
50
Scientists and commentators are beginning to recognize the environmental harms
and potential catastrophe that monocropping,237 a common agribusiness practice, may
cause.238 Two scholars succinctly explain why a small, diversified, urban food system is
better for the environment than the current industrial system:
The typical mono-cropping, coupled with reliance on fossil fuels and long
range transportation networks, create a complicated and inflexible system
that lacks resiliency. . . . A complex system, on the other hand, consisting
of multiple local/regional food systems is more resilient, as redundancies
and adaptive institutions may compensate for the failure of one ‘gear’ in
the system.239
Permitting residents to use their property for small-scale agriculture contributes to
this safer, more complex system. Moreover, because many urban homesteaders
practice organic gardening techniques, eschewing chemical fertilizers, and often
plant heirloom seeds, the biodiversity of the crops they are growing is preserved.
3. Water Runoff and Pesticides
Intensive industrial agriculture uses a lot of water, which can carry chemical
fertilizers and pesticides into waterways, contributing to pollution.240 Indeed, a number of
cities have recognized the harms pesticides impose on city waterways, and have thus
237
“Industrial monocultural farming focuses on large-scale production of a single crop; as a result, land is
overcultivated, crops are not rotated, and cover crops that protect topsoil between growing seasons are not
employed.” Peters, supra note 22, at 210.
238
See generally Matthew Rich, The Debate Over Genetically Modified Crops in the United States:
Reassessment of Notions of Harm, Difference, and Choice, 54 CASE W. RES. L. REV. 889 (2004);
Harwood, supra note 218; Angelo, supra note 197, at 606 (noting that the “shift from perennial rotation of
crops to large single crop monocultures, such as most corn fields, has led to erosion of topsoil”); Helena
Norberg-Hodge, Global Monoculture: The Worldwide Destruction of Diversity, in FATAL HARVEST: THE
TRAGEDY OF INDUSTRIAL AGRICULTURE 13. “Industrial farming techniques such as over-tilling, a lack of
crop rotation, inorganic fertilizers, pesticides, and monoculture mines the soil of its natural nutrients,
destroys soil biota and its habitat, and increases erosion.” Czarnezki, supra note 133, at 263-4.
239
Endres & Endres, supra note 121, at 406-07.
240
Angelo, supra note 197, at 606 (noting that “more than two billion tons of sediment enter the nation’s
waterways each year. . . . [which] can clog streams and fill in shallow areas in water bodies, thereby
reducing habitat and light availability to submersed plants.”).
51
banned their application on city-owned and maintained properties.241 Further,
monocropping results in large swaths of simultaneously and uniformly farmed land,
which increases the likelihood of runoff traveling “from one bare field [] across many.”242
In contrast, small urban garden plots and chicken coops often require less water than a
standard lawn, thus reducing the municipal water supply burden.243 Further, because
fewer petrochemicals are used on urban garden plots, the likelihood of tainted water
reaching waterways is reduced.244
Lawns, which are often treated with chemicals, are another key contributor to
urban and especially suburban water pollution, negatively impacting water quality due to
stormwater and irrigation runoff.245 Despite these problems, lawns are the number one
irrigated crop in the United States, and watering them consumes vast amounts of potable
municipal water.246 Some localities have taken action against these practices. Las Vegas
has limited the planting of new yards,247 while other cities require a property owner to
241
See, e.g., Arcata, Cal., Ordinance 1300 (Mar. 31, 2000) (finding that “[t]he migration of pesticides into
the City’s watercourses, water bodies and wetlands poses a severe threat to the health of the environment”
and banning “pesticides on or in any city owned, operated or maintained property”); Fairfax, Cal.,
Ordinance 686 (Mar. 2, 2001) (banning pesticide use by the town on “parks, open space parcels and public
rights of way and buildings owned and maintained by the Town”); San Francisco, Cal. Code §§ 302-304 (calling for a phased reduction in pesticide use); Albany, N.Y., Ordinance 34.5.11(MC) (June 6, 2011)
(same).
242
Johan Boardman, et al, Socio-economic Factors in Soil Erosion and Conservation, 6 ENVTL. SCIENCE & POL’Y 3 (2003).
243
“Growing a plot of vegetables can actually reduce a front yard’s water consumption and benefit the
community in drier times.” Cary, supra note 41.
244
However, cities should carefully regulate disposal of animal feces, as this type of pollutant is “more
likely to reach surface waters in urban areas” than rural. Dave Owen, Urbanization, Water Quality, And
The Regulated Landscape, 82 COLORADO L. REV. 431 (2011).
245
Did you know…Growing Vegetables in Your Front Yard is Against the Law?, supra note 43. Pesticide
loadings from suburban and urban areas are often higher than agricultural areas. For example, in New York
City, pesticide use for lawn care exceeds use for agricultural activities. New York City, ENVTL. ADVOCATES, http://www.envadvocates.org/public_html/Pest/Toxic_Treadmill/nyc.html (last visited Feb.
14, 2012).
246
Did you know…Growing Vegetables in Your Front Yard is Against the Law?, supra note 43.
247
LAS VEGAS, NEV., MUNICIPAL CODE §§ 14.11.140 (2003) (prohibiting new turf in non-residential areas
and common areas of single and multi-family residential areas) & 14.11.150 (2003) (prohibiting new turf in
residential front yards).
52
notify her neighbors if she plans to use pesticides.248 Localities could go further: by
allowing or encouraging residents to replace their lawns with native plantings or edible
crops, many of these harms could be reduced, thereby contributing to sustainability goals.
4. Animal Welfare
Finally, the meat-industrial complex results in dramatic harm to animals, and in
turn to the humans who consume them and their products.249 While a discussion of the
abuse and suffering that takes place in factory farms is beyond the scope of this Article, a
few points should be made. First, many people who raise backyard chickens for eggs
interact with these traditional “food” animals on a personal level, often viewing them as
pets.250 These interactions could lead to changed perceptions, and perhaps treatment, of
traditional “food” animals.
Further, there is a well-documented link between animal abuse and violence
towards humans.251 By integrating people with non-human animals through urban
248
See, e.g., Fairfax, Cal., Ordinance 686 (Mar. 2, 2001) (requiring 48 hours notice of pesticide application
on private property to neighbors); 17 N.Y. CITY ADMIN. CODE §§ 1101 – 1104 (same).
249
For a discussion of the harms associated with factory farming, see A. Christine Green, The Cost of Low-
Price Organics: How Corporate Organics Have Weakened Organic Food Production Standards, 59 ALA. L. REV. 799 (2008) (criticizing corporate organic factory farms); Ani B. Satz, Animals As Vulnerable
Subjects: Beyond Interest-Convergence, Hierarchy, And Property, 16 ANIMAL L. 65 (2009) (discussing
cruelty of factory farms).
250
Adrian Higgins, Hot Chicks: Backyard Chicken Keeping is Catching on, Legal or Not, WASH. POST,
May 14, 2009, http://www.washingtonpost.com/wpdyn/content/article/2009/05/13/AR2009051301051.html (“‘Chickens are America’s cool new pet.’”)
(quoting Dave Belanger, publisher of the magazine Backyard Poultry); Keith Goetzman, Are Backyard
Chickens Pets or Food?, UTNE READER, Dec. 17, 2010, http://www.utne.com/Wild-Green/Are-BackyardChickens-Pets-or-Food.aspx (“People want to get closer to their food, but often that means getting closer to
eggs, but not to meat—few want to eat an animal they know by name.”) (quoting KASSANDRA GRIFFIN,
MEATPAPER).
251
Sharon L. Nelson, The Connection Between Animal Abuse And Family Violence: A Selected Annotated
Bibliography, 17 ANIMAL L. 369 (2011); Charlotte A. Lacroix, Another Weapon for Combating Family
Violence: Prevention of Animal Abuse, 4 ANIMAL L. 1, 22 (1998); Arnold Arluke et al., The Relationship of
Animal Abuse to Violence and Other Forms of Antisocial Behavior, 14 J. INTERPERSONAL VIOLENCE 963
(1999); FRANK R. ASCIONE, THE ABUSE OF ANIMALS AND HUMAN INTERPERSONAL VIOLENCE: MAKING
THE CONNECTION, IN CHILD ABUSE, DOMESTIC VIOLENCE, AND ANIMAL ABUSE: LINKING THE CIRCLES OF
COMPASSION FOR PREVENTION AND INTERVENTION (Frank R. Ascione & Phil Arkow eds. 1999).
53
homesteading, the former might develop a greater respect for the latter, and thus be less
likely to harm them, and in turn, other humans. From an animal welfare perspective,252
non-human animals also benefit from urban homesteading as compared to life in a
concentrated animal feeding operation (CAFO); backyard animals typically have more
room, and are able to exhibit more natural behavior patterns.253 Indeed, if a city decides
to allow chickens, the ordinance could expressly state how much space they must be
given and how they must be treated.254
Finally, there are a number of environmental benefits to housing certain animals
on an urban farm. On pre-industrial farms, farmers fed their chickens kitchen scraps, used
them to manage weeds, and used their on-site animals’ waste to fertilize crops. Now, one
of the biggest problems with CAFOs is environmental pollution and water contamination
caused by excessive amounts of animal waste.255 Although animal waste in urban and
suburban areas would need to be managed so as to avoid water pollution problems, the
scale is much smaller than that on a CAFO, and thus the harms would be reduced.
b. Civic Virtue: Strengthening Community and Private Property
Interests
252
Gary L. Francione, Animal Rights And Animal Welfare, 48 RUTGERS L. REV. 397, 397-8 (1996) (animal
welfare “assumes the legitimacy of treating animals instrumentally as means to human ends as long as
certain ‘safeguards’ are employed,” while animal rights “‘demand[s]’ the end of institutionalized animal
exploitation”).
253
An HSUS Report, supra note 223.
254
See, e.g., KNOXVILLE, TENN., CODE pt. 112, ch. 5, art. IV, § 5-107(f)(3) (2010) (requiring two square
feet per hen in the henhouse and six in the fenced enclosure); CHEROKEE, GA., ZONING CODE § 7.724(a)(1)(iv) & (v) (2011) (requiring two square feet per hen in the coop and ten in the fenced enclosure);
ANN ARBOR, MICH., CODE tit. IX, ch. 107, § 9:42(3)(k) (2011) (“All enclosures . . . shall be so constructed
or repaired as to prevent rats, mice, or other rodents from being harbored underneath [or]within”);
PORTLAND, ME., CODE § 5-402(a) & (b)(1) (2009) (“chicken pen must provide adequate sun and shade and
must be impermeable to rodents, wild birds, and predators”). See generally Salkin, Feeding the Locavores,
supra note 62, at 5-7.
255
Angelo, supra note 197, at 606-7 (discussing animal waste at CAFOs).
54
Another reason that localities should allow urban agriculture within their
boundaries is that it may further principles of civic virtue, which is an important role of
local government. Civic virtue, like civic republicanism, focuses on cultivating behaviors
and traits in individuals that contribute to the strength of the community as a whole,256
including self-sufficiency, philanthropy, and reciprocity.257 Thus, one role of
municipalities is to foster civic virtue by legislating in the interest of the community at
large.258
Urban agriculture presents a provocative lens through which to examine civic
virtue. A local government that allows unlimited forms of urban homesteading—10-foot
tall bean poles in the front yard, chickens wandering about the property—is aiding the
individual landowner who desires to use her property in this manner. To that individual,
the government’s decision to be permissive allows for her self-reliance and furthers her
right to use her private property as she wishes. Some might view this as counter to
principles of civic virtue; Professor Epstein pointed out that:
256
Suzanna Sherry, Responsible Republicanism: Educating for Citizenship, 62 U. CHI. L. REV. 131, 134
(1995) (discussing civic republicanism’s “emphasis on communities rather than individuals”); Carlton
Morse, A Political Process Theory of Judicial Review Under the Religion Clauses, 80 S. CAL. L. REV. 793,
819 (2007) (“the foundation of republican politics is ‘civic virtue,’ not individual self-interest. Civic virtue
is a transcendent public good determined through deliberation between political actors willing to suspend
individual interest and instead derive their motivation from, and legislate according to, a consensus view of
the public good.”). See generally Kathleen M. Sullivan, Rainbow Republicanism, 97 YALE L.J. 1713, 1720
(1988) (discussing civic republicanism and civic virtue in the context of associations).
257
ROBERT D. PUTNAM, BOWLING ALONE: THE COLLAPSE AND REVIVAL OF AMERICAN COMMUNITY 19
(2000) (reciprocity as a civic virtue); James Madison, Republican Distribution of Citizens, NATIONAL
GAZETTE, Mar. 5, 1792 (“The class of citizens who provide . . . their own food . . . may be viewed as the
most truly independent and happy. They . . . are the best basis of public liberty, and the strongest bulwark
of public safety.”).
258
Many commentators discuss the benefits of democratic self-governance, and the belief that democracy is
key to local control. Tocqueville believed that participation builds political skills, and protects against
tyranny. ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 62-70 (J.P. Mayer ed. & George Lawrence
trans., 1969) (1966) (“townships and other participatory groups were little schools of citizenship where
people could form clear ideas about their rights and duties, while acquiring habits of deliberation and
mutual accommodation”). Gerald Frug believes that people who can govern themselves are happier, but
they will only participate if their participation will have an impact. Jerry Frug, The Geography of
Community, 48 STAN. L. REV. 1047, 1048, 1077 (1996) (“The role that cities ought to play in American
society . . . and [which] should inform the meaning of[] land-use policy - is community building.”).
55
It is often said that a theory that stresses the importance of private property
. . . ignores the role of civic virtue—devotion to public service, protection
of the weak, advancement of the arts, participation in public life—which is
central to understanding the highest aspirations of political life.259
However, at least with respect to urban agriculture, by developing strength in the
individual’s use of private property, a municipality can also foster civic virtue and a
robust sense of place in the community, which in turn furthers the ideals of democratic
self-governance.
The community benefits from the individual’s action because urban agriculture
results in a number of positive externalities that flow to, and help to build, the broader
community. If there is surplus produce, its sale at farm stands and farmer’s markets can
build community,260 or it can be donated to neighbors in need or food banks, furthering
philanthropy and reciprocity.261 Urban agriculture also opens a dialogue between
neighbors that often results in shared meals and traded foods,262 reinforcing a sense of
belonging and reducing atomization.263 Though individual traits are strengthened through
urban agriculture, individuals are not isolated, and are instead engaged with their
259
RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN 344 (1985).
“Municipal policies can help community gardeners make money by allowing them to sell excess
produce.” Promoting Urban Agriculture: Zoning, SUSTAINABLE CITIES INSTITUTE, http://www.sustainablecitiesinstitute.org/view/page.basic/report/
feature.report/Report_Zoning_Urb_Ag (last visited Feb. 14, 2012). If residents are permitted to sell excess
produce or eggs to their neighbors or to local markets, the taxes from those sales could remit to the local
government. Cities could also sell their own value-added goods from produce grown on municipally-owned
property. UC Davis does this: it bottles and sells olive oil from the olive trees on its campus. NORDAHL, supra note 16, at 98 (noting that the process “turn[s] maintenance crews into moneymakers by exploiting
the demand for locally produced food”).
261
PUTNAM, supra note 257, at 19 (reciprocity as a civic virtue).
262
“‘Urban agriculture [. . .] is an essential part of any program to make [] cities more livable, and to
improve the lives of city dwellers.’” NORDAHL, supra note 16, at 141; see also Supra Part IV(a); Edible
Backyards: Residential Land Use for Food Production in Toronto, CITY FARMER NEWS, Mar. 10, 2008,
http://www.cityfarmer.info/2008/03/10/edible-backyards-residential-land-use-for-food-production-intoronto/ (“Special foods are part of our culture, and eating together can bring people closer to each other.”);
COOKING, EATING, THINKING: TRANSFORMATIVE PHILOSOPHIES OF FOOD (Deane W. Curtin & Lisa M.
Heldke, eds. 1992).
263
PUTNAM, supra note 257, at 287 (discussing the erosion of social capital and civic engagement).
260
56
community.264 Commentators have noted that more public forms of urban agriculture,
such as community gardens, are “helping to attain broad civic aims, such as . . . boosting
civic pride and building community; reducing crime; strengthening our connection to
place. . . .”265 If municipalities revise their zoning codes to encourage productive
landscapes, and there is sufficient citizen desire and education to follow through, that
analysis should be transferable to urban produce on private property as well, as neighbors
engage in an exchange of information and food.
c. Support for the Free Market: Efficiency, Property Values, and
Nuisance Protection
Localities can also find support for overturning urban agriculture bans in
libertarian property ideals, which here coincide with environmental and civic virtue
justifications. Many libertarian and law and economics scholars argue that land can be
used more efficiently when there are fewer restrictions upon it.266 For example, Professor
Epstein suggested that “[z]oning stands in stark contrast to a system of private property,
264
Id. at 19 (“[S]ocial capital is closely related to what some have called ‘civic virtue.’ The difference is
that ‘social capital’ calls attention to the fact that civic virtue is most powerful when embedded in a dense
network of reciprocal social relations. A society of many virtuous but isolated individuals is not necessarily
rich in social capital.”).
265
NORDAHL, supra note 16, at 7 (analysis and studies focusing on community gardens and planting on
publicly-owned open space); Peters, supra note 22, at 210 (“Transforming vacant lots into thriving urban
gardens brings people together, giving them a common goal of beautifying their neighborhoods while
producing healthy food. . . . The beautification of once vacant lots and the increased sense of community
make urban neighborhoods safer and more attractive places to live, which, in turn, revitalizes urban
neighborhoods.”).
266
See, e.g., Amy Sinden, The Tragedy of the Commons and the Myth of a Private Property Solution, 78 U.
COLO. L. REV. 533, 588 (citing Robert C. Ellickson, Property in Land, 102 YALE L.J. 1315 (1993))
(describing Ellickson’s argument that when small and medium land use activities (including tomato
gardens), which only impact the individual landowner or a small group of neighbors, predominate,
“individual private property ownership is the most efficient arrangement”); Carol Rose, The Comedy of the
Commons: Custom, Commerce, and Inherently Public Property, 53 U. CHI. L. REV. 711, 720 (1986) (“The
usual economic approach to property law suggests that productive efficiency will be enhanced when private
property is the norm, but government intervenes in recognized instances of market failure.”). But see
Michael H. Schill, Deconcentrating The Inner City Poor, 67 CHI.-KENT L. REV. 795, 816 (1991) (“The
bulk of evidence on suburban land use regulation supports the conclusion that as currently practiced
restrictive zoning is inefficient. Nevertheless, this observation does not mean that eliminating all restrictive
land use regulation would be more efficient than the status quo.”).
57
which allows a single owner (within the confines of the nuisance limitation) to decide
how to use his plot of land. Where property rights are enforced, owners can make choices
on efficient land use without having to overcome the conundrums of collective
choice.”267 Thus, assuming a world with no restrictions (and no transaction costs), people
will use their private property in the most efficient way possible.268 Further, land that is
unburdened by regulations and is able to be used efficiently theoretically corresponds to
an increase in property values.269 Therefore, municipalities should benefit financially
from liberalizing bans that encourage inefficient use of land.270 Further, if homeowners
believe that attracting and retaining locavores will improve their property values,
Fischel’s homevoter hypothesis suggests that they will encourage their local
representatives to vote in favor of permissive urban agriculture policies.271
The removal of inefficient bans does not mean that there will be no protection for
aggrieved neighbors who disapprove of excessive agricultural uses; standard nuisance
law protections would remain in place even if these bans were lifted.272 Further, even if a
267
EPSTEIN, supra note 259, at 265.
See Ronald Coase, The Problem of Social Cost, 3 J.L. & ECON. 1 (1960) in ELLICKSON & BEEN, supra
note 20, at 768-71 (“Coase argues that, in a world of costless market transaction, there would be no
externalities because any outsiders affected by a land use activity would bring home those effects by, for
example, offering to pay the land user to alter the activity.”).
269
William K. Jaeger, The Effects of Land-use Regulations on Property Values, 36 ENVTL. L. 105, 118
(2006) (“If the landowner is acting to maximize the value of her land, then removing a binding constraint
would presumably raise the value of the land.”).
270
WILLIAM A. FISCHEL, DO GROWTH CONTROLS MATTER? A REVIEW OF EMPIRICAL EVIDENCE ON THE
EFFECTIVENESS AND EFFICIENCY OF LOCAL GOVERNMENT LAND USE REGULATION 36, 53 (1990)
(“conventional suburban zoning is inefficiently restrictive”).
271
FISCHEL, HOMEVOTER, supra note 140, at 4-5 (homeowners “tend to choose those policies that preserve
or increase the value of their homes”). Although empirical analysis about the impact of urban agriculture
ordinances on home prices would be useful, a municipality need not have foolproof evidence before
enacting an “innovative solution”—they “must be given a ‘reasonable opportunity to experiment with
solutions’….” City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002) (quoting City of Renton v.
Playtime Theatres, Inc., 475 U.S. 41, 52 (1986)) (Kennedy, J., concurring) (stating that “a city must have
latitude to experiment, at least at the outset, and [] very little evidence is required”).
272
EPSTEIN, supra note 259, at 265; Smith, supra note 39, at 215 (“A strong view of private property
empowers the landowner to do what she wishes with her yard. Yet the right to use one’s real property as
desired . . . was never conceived as absolute. . . . [T]he law of nuisance has imposed a significant set of
268
58
prescriptive ordinance expressly allows gardens or chickens, those activities can still
constitute an abatable nuisance under certain circumstances;273 some municipal codes
expressly state as much.274 Of course, many people successfully keep chickens within
residential areas without causing a nuisance.275
Some may wonder whether nuisance law will afford sufficient protection; zoning
developed, in part, because nuisance suits were not effectively addressing large-scale
harms.276 However, Ellickson suggests that small, localized land use issues, such as those
that might arise if one neighbor’s chickens are disturbing another neighbor, might be
better addressed “through private nuisance remedies supplemented by covenants and
good manners.”277 He continues:
restrictions on land use.”). See also 2 A.L.R.3d 965 (Originally published in 1965) (“The ground of attack .
. . usually involved the contention that the keeping of chickens or other fowl by the defendant unreasonably
interfered with the complainant’s enjoyment of adjoining property because the fowl caused noise, dust and
litter, or odors or pests. Whether the conditions complained of in fact existed to such a degree as to amount
to a nuisance . . . has turned upon the evidence produced in the particular cases.”).
273
See, e.g., Erwin v. Alvarez, 752 So. 2d 1261, 1262 (Fla. Dist. Ct. App. 2000) (trial court erred in finding
that appellees’ chickens constituted a nuisance, but that the appellees would not be in contempt so long as
they limited the number of chickens to the number allowed by the county ordinance); Biddix v. Henderson
Furniture Indus., Inc., 331 S.E.2d 717 (N.C. Ct. App. 1985) (compliance with a permit does not make a
party immune from common law nuisance claims); Union Oil Co. of Cal. v. Heinsohn, 43 F.3d 500 (10th
Cir. 1994) (same); Valley Poultry Farms, Inc. v. Preece, 406 S.W.2d 413, 416 (Ky. 1966) (“The keeping of
poultry has been a source of much litigation . . . and it has frequently been recognized that the keeping of
chickens is not a nuisance per se but may become a nuisance because of the circumstances or manner in
which the business is operated.”); Vaszil v. Molnar, 33 A.2d 743, 744 (NJ. Ch. 1943) (“The raising and
maintenance of chickens ought not to be unjustifiably discouraged. . . . Perhaps at some future time, the
science of breeding will produce the silent rooster and the quiet hen in company with the voiceless cat, the
odorless pig and the flealess dog. Meanwhile, chickens will continue to be chickens, and if in the present
cause it eventuates that the maintenance of poultry at the location selected is pursued in such conditions and
circumstances as to injuriously affect the comfort of residents of ordinary sensitiveness in the vicinity, this
court will not hesitate to enjoin its continuance.”); Catherine LaCroix, Urban Green Uses: The New
Renewal, 63 PLANNING & ENVTL. L. 3, 8 (2011).
274
See, e.g., LOS ANGELES MUNICIPAL CODE § 12.03 (allowing birds as an accessory use but stating that “if
the [city] determines that the keeping of birds or the keeping of a particular number of birds at a particular
location constitutes a nuisance or a health or safety hazard, then the keeping of birds under those
circumstance shall not be an accessory use.”); TOPEKA, KAN. ZONING CODE § 18-291 (“It shall be unlawful
for any person to keep or maintain any domestic fowl upon any private premises in the city (when such
keeping is lawful under other ordinances of the city) . . . on any premises in a manner or condition
constituting a public nuisance.”).
275
OLKOWSKI ET. AL., supra note 113, at 252.
276
Supra note III(b) and accompanying text.
277
Ellickson, Alternatives to Zoning, supra note 91, at 762.
59
The system of private nuisance law . . . avoids the allocative inefficiencies
threatened by mandatory regulations or injunctions. It relies upon a
decentralized policing system that is triggered more efficiently than a
centralized system, and it can easily be used to internalize existing
nuisances, not merely future ones.278
Thus, the common law of nuisance can control localized harms in a free market system
while also promoting efficient use of private property.
By allowing backyard chickens and front yard gardens, municipalities are not
completely eliminating regulatory control, but rather changing the party who holds the
“entitlement.”279 According to the framework created by Professors Calabresi and
Melamed, a governing body must first establish who has the entitlement, then determine
the remedy that should be given to the party with the entitlement.280 Where chickens and
front yard gardens are banned, the entitlement belongs to the neighbor without chickens
or a garden who is entitled to the peace and quiet of a neighborhood without the harms, or
negative externalities, that urban agriculture can cause.281 Once a municipality adopts a
permissive urban agriculture ordinance, it places the initial entitlement with the gardener
or chicken-raiser.
278
Id.
Guido Calabresi & Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of
the Cathedral, 85 HARV. L. REV. 1089 (1972). Perhaps the time is ripe to revise allocation of entitlements
precisely because underlying values are changing. “Like Coase, Calabresi and Melamed proposed that the
initial allocation of entitlements would be efficient in the sense that it would minimize future transactions
among parties.” Orbach & Sjoberg, supra note 24, at 25 (citing Calabresi & Melamed, supra note 279 at
1093-94).
280
Calabresi & Melamed, supra note 279. See also Orbach & Sjoberg, supra note 24 (discussing backyard
chicken ordinances in the context of the Calabresi-Melamed framework).
281
Orbach & Sjoberg, supra note 24, at 14 (“Using the Coasean framework, neighbor disputes over
backyard chickens illustrate the reciprocal nature of certain externalities. On the one hand, a legal rule that
prevents fowl lovers from keeping poultry on their premises entails harm to households that could benefit
from chicken ownership. . . . They articulate a wide range of economic, environmental, gastronomic,
health, social, and emotional matters that call for the exercise of their property rights to raise chickens in
their backyards . . . . On the other hand, a legal rule that permits fowl may impose discomfort and other
injuries on the chicken owners’ neighbors [who] consider backyard hens and roosters to be sources of
unacceptable levels of noise, smell, and health risks.”).
279
60
Urban homesteaders are thus protected by a property rule to the extent that they
can engage in urban agriculture practices, so long as they comply with any health and
safety, or nuisance-avoiding provisions of the ordinance. Again, if they fail to comply
with those provisions—if their chickens are too noisy, or if their garden attracts pests—
then the neighbor can bring a nuisance suit.282 Thus, determining the allocation of
entitlements has a real, important impact on how resources are allocated.283
By allocating the entitlement, either to urban homesteaders or to neighbors who
do not wish to engage in urban agriculture, the city is making a value judgment about
who should bear the costs of bringing action. One concern with relying on nuisance
instead of zoning is the high cost associated with abatement.284 If litigation is required to
abate the nuisance, that remedy is beyond many neighbors’ means. However, if a locality
were to adopt a permissive urban agriculture ordinance, it could also put in place a public
administrative system to handle neighborhood disputes related to nuisance, which
Ellickson suggests would be helpful for “specialized and repetitive issues. A single
adjudicative authority with exclusive jurisdiction over these cases could resolve them
with greater facility and consistency than courts of general jurisdiction.”285 Thus,
localities could eliminate bans, which would increase efficiency and promote the free
282
Consider what the outcome of the nuisance suit might be. Would the use have to cease? Or would the
locavore pay a fine to the neighbor? Most ordinances do not address the answer. Because chickens are
being kept pursuant to an ordinance, it is unlikely that a neighbor could obtain a total injunction. However,
fines might be levied upon a chicken owner who did not follow provisions in the ordinance related to
health, safety or noise. Jeff L. Lewin, Compensated Injunctions and the Evolution of Nuisance Law, 71
IOWA L. REV. 775, 802 (1986) (noting that there is now “a general presumption against unconditional
injunctive relief for prevailing plaintiffs. Plaintiffs generally would be limited to recovering damages, with
injunctive relief being available only when the defendant’s conduct was egregious or when it threatened the
safety or personal liberty of the plaintiff.”) (citing Ellickson, Alternatives to Zoning, supra note 91, and
Edward Rabin, Nuisance Law: Rethinking Fundamental Assumptions, 63 VA. L. REV. 1299 (1977)).
283
Lewin, supra note 288, at 794 (“[A]s suggested by the Coase Theorem, in the real world in which
transaction costs are not zero, the assignment of entitlements has an impact on resource allocation.”).
284
Ellickson, Alternatives to Zoning, supra note 91, at 762.
285
Id.
61
market and property rights, while at the same time ensuring that the availability of
nuisance protection was within the means of neighborhood residents.
V.
Moving Forward: Potential Solutions and Broader Implications
This Part will propose steps that municipalities can take as they move toward
more permissive views of urban agriculture, including specific approaches to permitting
those uses.286 This Part will also discuss what the lifting of urban agriculture bans
suggests about the future of land use law.
a. Zoning, Comprehensive Plans, and Covenants
The most straightforward approach that a municipality could take in pursuit of
more locavore-friendly practices would be to revise its comprehensive plan and zoning
code to eliminate any provisions that expressly ban urban agriculture, or that make it
more difficult for an individual to use her property for agriculture. There are generally
two different approaches for the treatment of a land use issue like urban agriculture: it
can be treated as a use or a district.287
If it is to be treated as a district, the municipality should begin by examining its
land use plan.288 If there is an existing designation for general agriculture, the
286
There exists a thin legal academic literature on urban agriculture ordinances, and specifically the
structure of ordinances addressing backyard chickens. See Orbach & Sjoberg, supra note 24, at 16-7;
Mukherji & Morales, supra note 17, at passim (addressing different zoning approaches that can be used to
allow urban agriculture); Salkin, Feeding the Locavores, supra note 62, at 4-7 (discussing different
approaches to backyard chicken ordinances). Because these articles do an admirable job of compiling many
of the existing urban agriculture ordinances, I will not repeat that task here.
287
Mukherji & Morales, supra note 17, at 4 (proposing these two approaches for the treatment of urban
agriculture).
288
For example, San Francisco’s mayor directed the Planning Department to “integrate policies and
implementing actions to support San Francisco’s food policy goals into elements of” the General Plan.
Executive Directive 09-03 Healthy and Sustainable Food for San Francisco, CITY OF SAN FRANCISCO, 4
(July 9, 2009),
http://www.sfgov3.org/ftp/uploadedfiles/sffood/policy_reports/MayorNewsomExecutiveDirectiveonHealth
ySustainableFood.pdf.
62
municipality should consider whether it makes sense to use that land use category, or to
create a new, separate category for urban agriculture, which could be applied as an
overlay district within the residential, commercial, and/or industrial areas of the city.289 If
the municipality prefers to treat urban agriculture as a use, which this author believes will
typically make more sense, it should first ensure that the comprehensive plan will allow
such a use, and then create a new use designation for urban agriculture practices. The
category should expressly allow uses such as front yard gardens, backyard chickens, sale
of produce or value-added products, and any other agricultural uses that the municipality
believes are important to its residents.
This could then be added as a use that is permitted either as of right or
conditionally in various existing zoning districts. In order to be truly permissive,
localities should allow urban agriculture as a principal or accessory as of right use, and
not require any type of permit.290 A municipality may still impose certain requirements
on uses that are permitted as of right, such as a limit on the number of chickens or size or
location of the garden, 291 or a requirement that the urban homesteaders pay a small fee
before conducting these activities on their property if the activity will exceed a certain
size.292
289
For example, “Boston [] has the Olmsted Green Smart Growth Overlay Zone, where there is a use
category for ‘food production uses, including a farm, garden, food production center . . .’ permitted in the
mixed use part of the zone.” Mukherji & Morales, supra note 17, at 6.
290
See, e.g., Mary Wood, et al., supra note 3, at 76 (suggesting that permits are unnecessary because
neighbors can rely on nuisance suits, and “a permit system would strain local government resources and
potentially discourage homeowners from keeping microlivestock”).
291
See, e.g., MOBILE, ALA., CODE § 7-103(d) (1965) (requiring coops to be twenty feet from property line);
CHEROKEE, GA., ZONING CODE § 7.7-24(a)(1)(iv) (2011) (coops must be twenty-five feet from property
line); NAPLES, FLA., ZONING CODE § 58-52(5) (2011) (thirty feet). See generally Salkin, Feeding the
Locavores, supra note 62, at 5-7.
292
See Seattle, Wash., Ordinance 123378 (2010).
63
The municipality might instead choose to require a CUP for urban agriculture,
although this would be moving away from truly permissive use.293 If the locality has
concerns about soil safety, one condition of permit approval could be to require an
environmental assessment to ensure that the soil would be suitable for gardening.294 Or, a
jurisdiction might allow urban agricultural activities that can be shown not to create
“significant objectionable influences in residential areas.”295 Though CUPs provide a
locality with more control over the use, they also typically involve even greater barriers
to entry than as of right permits, as they are typically quite expensive.296 Localities should
therefore consider their underlying goals for urban agriculture before instituting such
conditional requirements. If their primary purpose is to aid low-income families, to
address food insecurity, or to enable those in food deserts to harvest their own food,
certain requirements might inhibit those ends, especially in neighborhoods that lack large
lots.297
Once a municipality has determined which approach it will use, it should also
look into the existence of relevant private covenants in its jurisdiction. A very large
293
Mukherji & Morales, supra note 17, at 5. (“[C]ities may want to foster intensive urban agriculture
through permissive uses, but to prevent nuisance they may want to limit the extent of those uses – either by
making the use conditional or by confining it to specific districts.”).
294
A model community garden ordinance imposes a similar requirement: “Site users must provide a Phase I
Environmental Site Assessment (ESA). Any historical sources of contamination identified in the ESA must
be tested to determine type and level of contamination; appropriate remediation procedures must be
undertaken to ensure that soil is suitable for gardening.” Establishing Land Use Protections for Community
Gardens, PUB. HEALTH L. & POL’Y, 12 (June 2010).
295
NEW YORK CITY, N.Y., ZONING RESOLUTIONS § 22-14 (Use Group 4).
296
See, e.g., Planning Application Filing Fee Schedule, CITY OF SAN JOSE, CAL., 3 (Aug. 15, 2011),
www.sanjoseca.gov/planning/pdf/11-12_Fee_Schedule.pdf ($2,250); Application for Conditional Use
Permit, RICHMOND, VA., 4,
http://www.richmondgov.com/planninganddevelopmentreview/forms/ConditionalUsePermit.pdf ($1,100);
Conditional Use Permit Submittal Requirements, LOUISVILLE METRO PLANNING & DESIGN SERV, www.louisvilleky.gov/NR/rdonlyres/A7F4FC3D.../CUPJune07.pdf ($775).
297
A 150-foot setback “effectively limits backyard chicken raising to single-family homes on large lots.”
Salkin, Feeding the Locavores, supra note 62, at 6.
64
number of suburban homes in the U.S. are subject to CC&Rs,298 which are designed to
ensure a level of consistency and expectations.299 Even if the zoning ordinance would
permit backyard chickens or front yard gardens, the restrictive covenants often prohibit
such uses.
When a zoning ordinance is in conflict with a private covenant, the more
restrictive typically prevails,300 which in this instance would be the covenant barring
chickens or gardens. However, if a covenant is deemed to be against public policy, it may
be struck down.301 As localities and states place more emphasis on sustainable policy,
such a finding is possible. For example, restrictions that prohibit solar energy devices
have been deemed void in California via statute because “it is the policy of the state to
promote and encourage the use of solar energy systems and to remove obstacles
thereto.”302 Similar findings could be made to void covenants that prevent urban
agriculture in residential areas.303 This would likely not result in a violation of the
Contract Clause,304 which only permits the government to substantially impair existing
private contracts if (i) there is “a significant and legitimate public purpose behind the
regulation . . . [,] such as the remedying of a broad and general social or economic
298
Supra note 93. In 2011, approximately 25.1 million homes were governed by associations. Industry
Data: National Statistics, CMTY. ASS’N INST., http://www.caionline.org/info/research/Pages/default.aspx
(last visited Feb. 18, 2012).
299
CC&Rs may regulate house color, awning patterns, or the length of the front lawn. See ELLICKSON & BEEN, supra note 20, at 596 (discussing CC&Rs governing design).
300
RESTATEMENT (THIRD) OF PROP.: SERVITUDES § 3.1 cmt. c (2000); Inabinet v. Booe, 202 S.E.2d 463
(1974).
301
“The test of whether a contractual provision violates public policy is ‘whether the contract as made has a
“tendency to evil,” to be against the public good, or to be injurious to the public.’” Thayer v. Thompson,
677 P.2d 787 (Wash. 1984) (quoting Golberg v. Sanglier, 616 P.2d 1239 (Wash. 1980)).
302
CAL. CIV. CODE § 714 (1990); J. Wiley, Note, Solar Energy and Restrictive Covenants: The Conflict
Between Public Policy and Private Zoning, 67 CAL. L. REV. 350 (1979).
303
Supra Part III.
304
U.S. CONST. art. I, § 10, cl. 1 (“No State shall . . . pass any . . . Law impairing the Obligation of
Contracts . . . .”).
65
problem,”305 and if (ii) “the adjustment of ‘the rights and responsibilities of contracting
parties [is based] upon reasonable conditions and [is] of a character appropriate to the
public purpose justifying [the legislation’s] adoption.’”306 Here, the state or locality
would have a strong argument that the purpose of the regulation would be to remedy the
broad social issues that are associated with industrial agriculture, and that can be
improved by permissive urban agriculture policies.
b. Sustainability Plans and Goals
A number of U.S. municipalities have recently begun to regulate in furtherance of
the public health and safety through adoption of new “climate protection” or
“sustainability” plans.307 These plans may be standalone documents, or included as goals
or provisions in an existing comprehensive plan establishing sustainability as an
important pursuit of new regulations and development.308 Many municipal governments
have created special departments responsible for administering their sustainability
plans.309 Some commentators have suggested that this is part of an “emerging
305
Energy Reserves Grp., Inc. v. Kan. Power & Light Co., 459 U.S. 400, 411-412 (1983).
Id. at 412 (quoting U.S. Trust Co. of N.Y. v. N.J., 431 U.S. 1, 22 (1977)).
307
See, e.g., The Baltimore Sustainability Plan, BALT. COMM’N ON SUSTAINABILITY (Feb. 2009),
http://www.baltimorecity.gov/Government/AgenciesDepartments/Planning/OfficeofSustainability.aspx
(last visited Sept. 2, 2011) [hereinafter Balt. Sustainability Plan]; Climate Protection Plan, KAN. CITY, MO.
OFFICE OF ENVTL. QUALITY (July 2008),
http://www.kcmo.org/CKCMO/Depts/CityManagersOffice/OfficeofEnvironmentalQuality/OfficeofEnviron
mentalQuality/index.htm (last visited Sept. 2, 2011) [hereinafter Climate Prot. Plan]. See also Peters, supra
note 22, at 206 (“Establishing a sustainable urban agricultural system would reduce the environmental
degradation that is caused by modern agricultural practices, reduce the financial strain on government
resources by increasing urban productivity and enabling urbanites to grow a local food supply, and reduce
socioeconomic disparities by providing less-advantaged populations in urban areas with access to an
adequate supply of fresh, nutritious food.”).
308
In Kansas City, the City Manager must answer the question, “[h]ow will this contribute to a sustainable
Kansas City?” on the fact sheet for all ordinances and resolutions. Kan. City, Mo., Resolution 080246
(2008).
309
See, e.g., Environment Department, CITY AND COUNTY OF S.F.,
http://www6.sfgov.org/index.aspx?page=109 (last visited Sept. 2, 2011); Department Environment, CITY
OF CHI., http://www.cityofchicago.org/city/en/depts/doe.html (last visited Sept. 2, 2011). See also
Environmental & Energy Services, CITY OF BOS., http://www.cityofboston.gov/environmentalandenergy/
306
66
international environmental norm” that there is a duty among developed nations to
alleviate contributions to climate change.310
While many of these sustainability plans address issues such as transportation,
green building, and high-density development, a next step is to include local food
production.311 Urban agriculture can substantially contribute to “green” goals that many
localities are actively trying to further;312 indeed, some cities have begun to include
foodshed analysis and local food policies in their comprehensive or sustainability
plans.313 For example, the Baltimore Sustainability Plan recognizes the “growing
movement to utilize urban land for agriculture as a means of providing fresh food to
communities” and finds that such an approach “would reduce fuel use and greenhouse
gas emissions . . . .”314 One goal of the plan is to “[e]stablish Baltimore as a leader in
(last visited Sept. 2, 2011); Office of Sustainability and Environment, SEATTLE,
http://www.seattle.gov/environment/ (last visited Sept. 2, 2011); Office of Sustainability, CITY OF
CLEVELAND, OHIO,
http://www.city.cleveland.oh.us/CityofCleveland/Home/Government/CityAgencies/PublicUtilities/Sustaina
bility (last visited Sept. 2, 2011); So What is Sustainability?, BALT. OFFICE OF SUSTAINABILITY,
http://www.baltimoresustainability.org/ (last visited Sept. 2, 2011); Mayor’s Office of Sustainability, CITY
OF ATLANTA ONLINE, http://www.atlantaga.gov/mayor/sustainability.aspx (last visited Sept. 2, 2011);
Sustainable Sacramento, CITY OF SACRAMENTO DEP’T OF GEN. SERV.,
http://www.cityofsacramento.org/generalservices/sustainability/ (last visited Sept. 2, 2011); and Office of
Environmental Quality, CITY OF KAN. CITY, MO.,
http://www.kcmo.org/CKCMO/Depts/CityManagersOffice/OfficeofEnvironmentalQuality/index.htm (last
visited Sept. 2, 2011).
310
Medina & Tarlock, supra note 105, at 1743, 1756 (“[C]omprehensive land-use planning may be the
better, more comprehensive tool for reducing greenhouse gas emissions.”).
311
NORDAHL, supra note 16, at 107 (“If a city is truly interested in ‘going green,’ as many are, food has to
be considered an integral part of sustainability.”). Cleveland recently adopted an ordinance offering a “bid
incentive to local producers, local-food purchasers, and sustainable businesses who apply for a City
contract.” Cleveland, Ohio, Ordinance 1660-A-09 (Mar. 29, 2010). See also Morales & Kettles, supra note
76, at 38 (“Pressure for sustainable and livable cities, and demands from food policy advocates, is
compelling cities to reorganize right of ways and zoning [related to food trucks and farmers’ markets].”).
312
For example, people who grow their own food seasonally will take fewer car trips to the local
supermarket. Those supermarkets can thus reduce the amount of food on their shelves, which will
contribute to a decrease in emissions both from food transport and production. Supra Part IV(a)(ii)(1); but
cf. supra notes 228 - 230 and accompanying text.
313
Salkin & Lavine, supra note 9, at 600.
314
Balt. Sustainability Plan, supra note 307, at 70.
67
sustainable, local food systems,”315 in pursuit of which the city has devised a number of
strategies, including the development of an urban agriculture plan, altering zoning to
allow for production and sale of urban agricultural products, and increasing the
percentage of agricultural land in the city.316 Kansas City, Missouri’s Climate Protection
Plan sets a goal of 10,000 vegetable gardens, and promotes residential neighborhood food
production through methods that reduce greenhouse gas emissions and sequester
carbon.317 And Chicago’s “Eat Local Live Healthy” plan includes increased food
production in neighborhoods and increased knowledge of urban farming and composting
as goals.318 Many other cities are following suit.319 Thus, a number of local governments
have recognized that creating urban agriculture policies and plans can assist them in
furthering broader sustainability goals.
c. Broader Implications: The Fall of Euclidean Zoning?
As sustainability has become more important to many citizens and municipalities,
there has been a concomitant recognition that perhaps Euclidean zoning cannot
sufficiently address modern challenges and sustainable development goals.320 The move
315
Id. at 74.
Id. (Strategies A & D).
317
Climate Prot. Plan, supra note 307, at 24 (Appendix A); Id. at 14 (Appendix B) (recommending similar
advice to this Article, including revision of local ordinances “to explicitly allow tall garden plants, front
yard gardens, and cover crops,” and elimination of codes “that are barriers to produce stands/farmers
markets in neighborhoods”).
318
Chicago: Eat Local Live Healthy, CITY OF CHI. HOUS. & ECON. DEV., 16 (June 2007), http://www.cityofchicago.org/content/dam/city/depts/zlup/Sustainable_Development/Publications/Eat_Loc
al_Live_Healthy_Brochure/Eat_Local_Live_Healthy.pdf (identifying “food issues that, if restructured
locally, could improve food quality, lower its cost and increase its availability for consumers”).
319
For example, Oakland is undertaking a comprehensive urban agriculture update to implement policies in
the Open Space and Conservation Element of its General and Climate Action Plans. Urban Agriculture
Citywide Update, PLANNING & ZONING, http://www2.oaklandnet.com/Government/o/CEDA/o/PlanningZoning/OAK029859 (last visited Feb. 18,
2012). San Francisco’s goals include supporting urban agriculture through modification of zoning
ordinances, horticulture education, and incentivizing ownership of some small livestock. Final
Recommendations, supra note 225, at 8.
320
Salkin, Squaring the Circle on Sprawl, supra note 19, at 788.
316
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toward permissive views of urban agriculture is a reversal of the key premise of early
zoning ordinances: that single-family homes had to be protected from agriculture. Change
inheres in the adoption of urban agriculture policies, new urbanism, smart growth and
form-based codes,321 including in how neighbors interact in a system of fewer
regulations. This section sketches the broader implications of this movement.
Challenges to traditional Euclidean zoning have been asserted for many years,322
though its critics have become more vocal and powerful in recent times.323 Further,
zoning laws themselves have changed over time. Professor Joseph Sax links the change
in laws to changes in views about what we need to protect: “‘Many things considered
harmful today were once legal and commonplace. If views about what is harmful cannot
change to reflect contemporary conditions and values, property owners may be afforded
stability but property is rendered dysfunctional to society.’”324 The opposite is also true;
maintaining bans on urban agriculture might render property and expectations stable,325
but the emerging view is that urban agriculture is a beneficial and acceptable use in a
residential area. Unless zoning laws change to reflect contemporary views of health,
safety, and community values, property ownership becomes dysfunctional. Thus, a
321
There is an emerging but thin scholarly literature discussing form-based codes. See generally Lolita
Buckner Inniss, Back to the Future: Is Form-Based Code an Efficacious Tool for Shaping Modern Civic
Life?, 11 U. PA. J.L. & SOC. CHANGE 75 (2008); Elizabeth Garvin & Dawn Jourdan, Through the Looking
Glass: Analyzing the Potential Legal Challenges to Form-Based Codes, 23 J. LAND USE & ENVTL. L. 395,
396 (2008); CHAD EMERSON, THE SMARTCODE SOLUTION TO SPRAWL (2007).
322
Brian W. Ohm & Robert J. Sitkowski, The Influence of New Urbanism on Local Ordinances: The
Twilight of Zoning?, 35 URB. LAW. 783, 784-85 (2003) (“Practitioners and academics became aware of the
failures of traditional zoning as early as the 1940s, while zoning was still in its infancy.”).
323
See generally ANDRES DUANY, ET AL. SUBURBAN NATION: THE RISE OF SPRAWL AND THE DECLINE OF
THE AMERICAN DREAM (2001).
324
Peggy B. Johnson, The Takings Issue in the Local Government and Watershed Context, 1995 DET. C.L.
REV. 17, 31 (1995) (quoting Joe Sax, uncited source).
325
Consider the reliance interests of neighbors living in areas with bans who do not want to use their
property for urban agricultural purposes. They likely purchased homes with expectations, including the
existence of the ban. If the locality then liberalizes the law, they might argue that a taking has occurred, or
at least that the new, permissive ordinances constitute a change that harms them in their use and enjoyment
of their property based on their reasonable expectations.
69
movement toward more beneficial property uses protects the utility of property in a
changing society.326
The removal of urban agriculture bans is a form of regulatory minimalism—a
movement away from centralized legal authority and toward deregulation. Some theorists
assert that law is not always necessary for people to coordinate their behaviors and use of
land. Economist Charles Lindblom suggests that “people can coordinate with each other
without anyone’s coordinating them, without a dominant common purpose and without
rules that fully prescribe their relations to each other.”327 Ellickson’s study of ranchers in
Shasta County would support this line of reasoning: neighbors who live in an area that
adopts a permissive urban agriculture ordinance will find ways to coordinate with each
other—through informal social norms and good manners—without the need for
regulation.328 However, there is some suggestion that those norms are only persuasive
means of coordinating groups of neighbors when people live in small, close-knit
communities.329 So, while mutual adjustment may work successfully in some suburban
neighborhoods where turnover in homeownership is low, in larger, dense urban areas,
informal coordination might not be sufficient to resolve all disputes.330
326
See Salkin, From Euclid to Growing Smart, supra note 2, at 147-48 (discussing the “transformation of
American land use law from an arcane technique designed to separate different types of uses, to a
recognition that land use law, policy and practice have evolved into a much more dynamic network of
locally adopted laws and regulations designed to . . . promote sound environmental protection goals”).
327
CHARLES E. LINDBLOM, THE INTELLIGENCE OF DEMOCRACY 3-5 (1965) (describing “mutual
adjustment”).
328
ROBERT C. ELLICKSON, ORDER WITHOUT LAW: HOW NEIGHBORS SETTLE DISPUTES (1991) [hereinafter
ELLICKSON, ORDER WITHOUT LAW] (studying informal norms governing boundary fences); see also
Ellickson, Alternatives to Zoning, supra note 91, at 685 (discussing norms and manners).
329
ELLICKSON, ORDER WITHOUT LAW, supra note 328. See also ELLICKSON & BEEN, supra note 20, at 39
(suggesting that “the more closely-knit a group of residents and landowners, the more likely they are to
succeed in exercising informal social controls to settle land use disputes at the micro level” and that “[a]s
the number of neighbors affected by a conflict grows . . . bottom-up cooperation becomes more difficult”).
330
If manners are not sufficient, Ellickson notes that government can aid resolution of problems while still
maintaining a decentralized approach to the distribution of property rights; it does this by enforcing
covenants and nuisance protections. Ellickson, Alternatives to Zoning, supra note 91, at 686.
70
Although some communities still hold to traditional Euclidean values to attract
residents who hold those same values, traditional conceptions of morality are slowly
beginning to change in some parts of the country.331 Though zoning is communitarian,
the concern for protection of only a certain segment of the community through zoning
(e.g., upper-middle-class single-family homeowners) is being replaced by a concern for
the broader community.332 These changes are embodied in the emergence of the
sustainable development ideal that underscores many new comprehensive plans,333 and
through a change in norms, as localities begin to prioritize the benefits of urban
agriculture over the perceived harms. Although prescriptive noise ordinances may govern
the extent to which a barking dog can go on before neighbors have a right to complain,
those ordinances rarely limit a homeowner from keeping a dog. This is because the norm
favors dog ownership in residential areas. As more localities realize the benefits that flow
331
See supra Part III(a).
This is not only true in the United States. For example, the Countryside and Rights of Way Act provides
for a “right to roam” over certain privately-owned but natural land in England and Wales for the purpose of
“‘improv[ing] public health[,] reduc[ing] social divisions”’ and establishing a degree of “‘social equity.”’
JESSE DUKEMINIER, ET AL., PROPERTY 812 (7th ed. 2006) (quoting KEVIN GRAY & SUSAN GRAY,
ELEMENTS OF LAND LAW 1372 (5th ed. 2009)). See also Atl. Coast Line R.R. Co. v. City of Goldsboro,
N.C., 232 U.S. 548, 559 (1914) (regulation under the police power must be “designed to promote the
health, comfort, safety, or welfare of the community”); Carole Necole Brown, Taking the Takings Claim: A
Policy and Economic Analysis of the Survival of Takings Claims after Property Transfers, 36 CONN. L.
REV. 7, 16-7 (2003) (“It is well established that government may regulate, by exercise of its police power,
in a way that burdens the individual’s use and enjoyment of his private property. . . . Notwithstanding the
essential nature of the police power to government, the United States Supreme Court maintains that
limitations exist on a sovereign’s ability to regulate the uses to which private citizens may put their
property.”).
333
Supra Part IV(b); see, e.g., City of Seattle Comprehensive Plan: Toward a Sustainable Seattle, DEP’T OF
PLANNING & DEV.,
http://www.seattle.gov/DPD/Planning/Seattle_s_Comprehensive_Plan/ComprehensivePlan/default.asp
(“Sustainable cities use resources efficiently and effectively. They reuse and recycle. . . . They use existing
local resources where they can. They minimize exportation of environmental risk. They provide physical
and economic security, and they distribute these and other benefits evenly.”); Kansas City, Mo.
Comprehensive Plan: Forging Our Comprehensive Urban Strategy, CITY PLANNING & DEV.,
http://www.kcmo.org/CKCMO/Depts/CityPlanningandDevelopment/AdoptedPlans/FOCUS/index.htm
(“Kansas City shapes and guarantees its future by examining first and foremost the impact of every
decision on future generations.”).
332
71
from urban agriculture, perhaps those norms too will change. The hen itself may someday
be welcomed into the neighborhood, so long as its clucking and odors are managed.
VI.
Conclusion
Everything old is new again,334 and so it is with land use. In the days before
zoning ordinances, mixed-use communities developed to accommodate the needs of a
public that walked to work and to the market. Many of those community members grew
their own produce or raised chickens out of necessity. Although Euclidean zoning
stepped in to separate conflicting uses nearly one hundred years ago, many communities
are pursuing a return to a mix of uses amidst recognition that Euclidean zoning was a
direct cause of sprawl and unsustainable development in the United States.335 This Article
has demonstrated that, although there are some valid reasons for banning urban
agricultural uses, those justifications are often antiquated and outweighed by more
current conceptions of beneficial and harmful uses of land. As views about what actions
are appropriate in a residential area change, local governments should revise their
ordinances to reflect current conceptions of harm. The potential for a large-scale
downward shift in demand for industrial agriculture is possible as more municipalities
begin to overturn their urban agriculture bans. Although a single locavore growing
tomatoes and collecting her pet chickens’ eggs might not greatly contribute to a
sustainable future, multiple locavores, across multiple jurisdictions, undertaking those
same actions, certainly will. Zoning and land use laws are flexible enough to change to
334
See PORTLANDIA, DREAM OF THE 1890S, http://www.ifc.com/portlandia/videos/portlandia-dream-of-the1890s (suggesting that pickling, raising chickens, and curing one’s own meats, which were popular in the
late 1800s, have returned to the forefront of popular culture).
335
Nicolas M. Kublicki, Innovative Solutions to Euclidean Sprawl, 31 ENVTL. L. REPORTER 11001 (Aug.
2001) (“Euclidean zoning has resulted in cities that expand outward rapidly due to their inability to
combine land uses and grow vertically”).
72
reflect contemporary values; however, local governments must be willing to take steps
toward making that change.
73